Forrest J. Cavalier III forrest at mibsoftware.com
Sat Mar 11 06:33:09 UTC 2000

(IANAL, but soon I'll need one if UCITA comes near me.)

I believe RMS fears are justified.  The UCITA language
appears to be cleverly crafted.

With respect to the implied warranty.

UCITA creates implied warranty out of thin air EVEN IF there
is no consideration (i.e. $$ to the provider) excerpt below.)

It also sets _specific_ wording requirements in disclaimers.  (Is
there any thing else like this in law?  I thought that the intent of
contracts was more important than the words used...)

I am particularly outraged by the language creating the implied
warranty in section 403 (and similar in 401.)

     "...a licensor that is a merchant with respect to computer 
      programs of the kind warrants..."

I read this as: if I sell _any_ software, I am a merchant, and
must warrant that _all_ the software I license as being 
      merchantable (per UCITA 403), 
      noninfringing (per 401), 
EVEN IF I license some open source software at no cost.

(If I don't sell software regularly, if it is my hobby, then
there is no obligation.)

That is a very unfair and chilling burden.  RMS is right, I think.


One saving point for open source software appears to be this:

   406 (d) If a licensee before entering into a contract has examined the
   information or the sample or model as fully as it desired or has
   refused to examine the information, there is no implied warranty with
   regard to defects that an examination ought in the circumstances to
   have revealed to the licensee.

That "ought" is a very thin thread to hang a defense on though.

And maybe in some cases you can add wording to licenses to limit
damages (due to breach of implied warrantees) to the purchase cost.
Too tired to read UCITA 803, and 803d seems to say that you
can't always do limit.


As a software consultant who also distributes open source software
at no cost, disclaiming warranty is absolutely essential.

406.b.1.a allows me to disclaim warranty under 403 with the
standard language mentioning "merchantibility."  The wording
of this paragraph seems to indicate it can be done in the
standard inclusion of the disclaimer with the source.  But it
is not clear that is sufficient.  (RMS's objection too?)

I don't see a way to disclaim the implied non-infringence
warranty of 401.  That's a bigger problem.


If you want to see something really scary for consumers, read
UCITA 107d:
   A person that uses an electronic agent that it has selected for making
   an authentication, performance, or agreement, including manifestation
   of assent, is bound by the operations of the electronic agent, even if
   no individual was aware of or reviewed the agent's operations or the
   results of the operations.


But, oh, don't worry about that, I bet the lobbyists say.  Because
UCITA 206a allows you to petition the COURT for "appropriate
relief if the operations resulted from fraud, electronic
mistake, or the like."

I think there is going to be some nice money to be made by trojaning
software to do credit card deposits.  Before UCITA, it is fraud and
maybe conspiracy, and you could end up in jail.  After UCITA, as long
as the "person selected the electronic agent" (which you trojaned) 
then you are OK.

Overcharge 1,000,000 card holders $2 each, each individual won't 
petition the court, and you retire with $2MM.

Somebody please explain:

1.  UCITA could have been a nice clarification of some sticky parts
    of contract law applied to computers.  Contract law works
    quite nicely most of the time and is a heck of a lot easier
    to understand than UCITA.

    So can somebody give an example of a problem that UCITA solves?

2. Is there any benefit for consumers in UCITA?
   (Beyond avoiding the scary future the lobbyists predict
   that no one will be able to write and sell software in
   the future if UCITA isn't passed?)

Again, IANAL.  

Forrest J. Cavalier III
Mib Software

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