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MS-backed US law could destroy consumer rights to redress

No matter how dud the package you just bought is, the software companies will be laughing. At you.

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Microsoft is backing awesome legislation which absolves software producers from virtually all liability for their products. Even if it's shipped with a virus, doesn't match a demo, is just plain defective, or so bug-ridden it's unusable, American consumers will have no right of redress under the proposed rules. Microsoft's EULA (end user licence agreement) is draconian enough, and experience has already shown that refusal to agree to it does not readily result in a refund for the software product. But what's in the wind is far worse. The US Uniform Commercial Code (UCC) defines fair trade practices across US states, but Article 2B, now in draft and which covers all software sales, licensing, support and maintenance contracts, is seriously slanted against consumers. It effectively removes from software producers any responsibility for their duff software. And apparently Microsoft thinks the open software movement will have to support this restrictive approach. A paper on copyleft (as it is called, to distinguish open products from copyrighted, proprietary ones) by Microsoft lawyer Robert Gomulkiewicz, who is chairman of the UCC 2B working group of the Business Software Alliance, has just appeared in the Houston Law Review. In it, he examines why, in his view, the open software movement will need to rely on Article 2B and so become like proprietary software developers. After a contorted argument that tries to set out why open source licences are unlikely to succeed, he goes on to claim that Article 2B will be necessary. The result is likely to be, he apparently believes, that open source developers will end up playing by the same rules as the Microsofts of this world. The drafting of Article 2B is being done by the National Conference of Commissioners on Uniform State Laws, and the American Law Institute. Some commissioners now recognise that the proposed law is not balanced, and the ALI has passed a resolution that it should be fundamentally revised. However, there are strong forces pushing it, and the present version may find its way to state legislatures either later this year or early next year. There is an active campaign against the present form of Article 2B, spearheaded by lawyer Cem Kaner (summarised in his book Bad Software [Wiley, 1998]) and supported by consumer advocate Ralph Nader amongst others. The problem has been that Article 2B drafting (there are 200 pages of it) has been carried out by publishers, with no input from consumers, and has become extremely unbalanced. By and large, US law of this type tends to find its way into other countries - or US companies try to insist that a contract is drawn up under US law. This should be resisted. The US has already unilaterally extended intellectual property law by granting absurd patents for software. It is time for the European Commission to produce a useful Directive, instead of some of the nonsense we read about, to deny recognition of US software patents in Europe. Of course, software companies claim that there is a great deal of piracy, and produce unfounded claims as to its volume. We have become mightily suspicious of these headline-grabbing claims, and suspect that piracy is at a very much lower level than is claimed. Gomulkiewicz argues that the most effective way of protecting open software is to embrace it with the same laws that are used for proprietary software, which is likely to have the effect of suffocating it. Microsoft is not alone in pressing for this legislation: all proprietary software companies want it, since it will give them indecent powers and take away reasonable rights from consumers. The consequences, should Article 2B be enacted, will be to confirm and to provide legal protection for a licensing model that limits users' rights, and allows publishers to introduce non-negotiable terms that are unlikely to be known (and certainly not understood) before the sale has been made. Even worse: the terms can then be enforced against the purchaser. Article 2B is fundamentally flawed, and Microsoft's interest in it does not bode well. If it is allowed to continue unchecked, the losers will be consumers, and quite likely the open software movement if Gomulkiewicz is right. One effective remedy that could be used by Judge Jackson if he rules against Microsoft would be to ensure that Microsoft is not allowed to get away with selling upgrades until a previous version functions properly. But Microsoft is well aware that Article 2B is probably a defence against any such remedy. ®

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