| About InfoWorld : Advertise : Subscribe : Contact Us : Awards : Events : Store |
 |
||||
|
||||
 |
||||
 |
|
|||
 |
||||
|
|
|
||
|
|||||||||||||||||||||||||||||||||||||||||
 COLUMN
Federal redrafting of the UCITA law could benefit everyone -- including Bush AT FIRST GLANCE, one might think it entirely futile to look to the new Bush administration for help against the Uniform Computer Information Transaction Act (UCITA). After all, the administration has already made a number of "business-friendly" moves, and isn't UCITA the last word in business-friendly legislation?
When the law that eventually became UCITA was conceived more than 10 years ago, the high-tech marketplace already needed to set the ground rules. Long before the emergence of the Web, ecommerce, open-source software, and so on -- and certainly before any advocate from the customer side of the equation was aware of the drafting effort -- UCITA had taken the basic form it retains today. And because a handful of large software companies were virtually the only ones at the table, the law has proven totally unbalanced in their favor to the detriment of IT organizations, small software developers, and almost every other type of business. UCITA was therefore an opportunity missed, a tragedy made all the worse by the fact that the Internet economy has made a balanced law even more of an imperative today than it was 10 years ago. But another opportunity presents itself: a federal law that recognizes the needs of both vendors and customers for some certainty and fairness in the rules governing software and/or online transactions. Such a law is possible. Because some thorny issues are involved, I won't pretend that the law would be a cinch to craft. But in a legislative process where compromise is necessary, I'm convinced everyone could come away with the things they really need. At the heart of UCITA is the software industry's desire to be certain that its licensing agreements will stand up in court. That's not an unworthy goal, but some limits must be placed on the overreaching of lawyers who write the typical shrink-wrap/click-wrap licenses. Obviously, the more nefarious terms that UCITA seems to make enforceable -- such as those that prohibit public criticism of the vendor's product, allow a publisher to deactivate software for no reason, or allow an online service to retroactively modify its privacy policy by quietly posting changes on its Web site -- would be rendered powerless. More common terms in existing licenses could be endorsed, at least within certain specified parameters. Virtually all shrink-wrap licenses disclaim implied warranties which, to a degree, is entirely reasonable. No one has the right to expect a warranty for a free service on the Internet, for example, and a minor bug shouldn't allow a customer the right to a refund. But customers should be offered some type of remedy when deprived by a bug of a feature they reasonably expected they were paying for; if not a money-back guarantee, at least free support or a free upgrade to help fix the problem. Similarly, disclaimers of consequential damages should be allowed, but an exception must be made when the damage was caused by a known bug that the vendor didn't attempt to warn users about. Most importantly, the old paradigm of shrink-wrapped software bought in a retail store that UCITA tries to graft onto e-commerce has to be dropped forever. In a Web-based world, vendors have no excuse for hiding terms until after the buyer has paid. All terms and conditions should be available for inspection by the general public. Any restriction or limitation that might reasonably be thought to fall outside the customer's expectations should be prominently displayed where it's hard to miss, as are the "sold as is" signs we see on most nonreturnable goods other than software. It could be done, and it might not be that hard. For a little effort the long-term benefits to American business, not to mention consumers, could be quite remarkable. Consumers leery of the nasty traps waiting for them in e-commerce would get some reassurance, as would software and Internet companies that fear dire legal consequences for things over which they have little or no control. Established high-tech powerhouses could perhaps focus less on using the law to their advantage and more on actual innovation. If George W. Bush really wants to bring us together, this is one area where a little bit of political arm-twisting and consensus-building could make it happen. I'm not going to hold my breath, but we'll see. Miracles can happen. Return to In-Depth: IT Policy Got a complaint about how a vendor is treating you? Contact InfoWorld's reader advocate, Ed Foster , at gripe@infoworld.com. Discuss this article in our online forums MORE > SPONSORED WHITE PAPERS 
SPONSORED LINKS
|
|||||||||||||||||||||||||||||||||||||||||
|
||||||||||
|
||||||||||
