UCITA

[Rod Dixon, J.D., LL.M.]

This may provide you with little "real" comfort, but there will be plenty
lawyers waiting to help you. UCITA is sure to create loads of lititgation.

Rod Dixon, J.D., LL.M.
www.cyberspaces.org
rod at cyberspaces.org


> -----Original Message-----
> From: Forrest J. Cavalier III [mailto:forrest at mibsoftware.com]
> Sent: Saturday, March 11, 2000 1:33 AM
> To: license-discuss at opensource.org
> Cc: forrest at mibsoftware.com
> Subject: Re: UCITA
>
>
> (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),
> AND
>       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.
>
> WOW!
>
> 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
>
>
>