UCITA isn't just bad news for software customers. Ultimately, it's also going to be bad for the software industry. Or, better said, it's going to encourage business practices which I believe are already harming innovation and competitiveness in the American software industry.

   ADVERTISEMENT
  

Free IT resource

Virtualization Insights from Top Experts - Learn how virtualization gets real!

Sponsored by Dell

Free IT resource

TechNet: More ways to know it, share it, and keep it running.

Sponsored by Microsoft

RELATED LINKS
»  AT&T buys high-speed wireless spectrum for $2.5 billion
»  Update: Sprint chief Forsee resigns
»  IT trainer offers master's degree for hackers
»  Wireless RSS feed 

IDG ENTERPRISE NETWORK
• More Network LAN/WAN News...  (ComputerWorld)
• Wireless EV-DO on board  (ComputerWorld)

TOP NEWS 


IT SOLUTION SEARCH

In my role as InfoWorld's "reader advocate" and Gripe Line columnist, a big part of my job is to listen to the problems and difficulties InfoWorld readers have in dealing with software companies. For a long time now I've felt there is a real problem in the way the software industry treats its customers. In what other industry will a company take your money for a product that doesn't actually exist yet, or charge you $2 per minute to report a flaw in its product, or tell you that its product comes with no guarantee that it even works?

A cure for 'known bug' syndrome?

The reason I first got involved with Article 2B, UCITA's predecessor, was in response to readers' complaints about the "known bug" syndrome -- the common experience of discovering that a problem you've spent hours, days, or weeks trying to overcome is due to a bug or conflict that the software publisher knew about all along but chose not to make public. It's strange to think there'd even be an argument about it -- why shouldn't a software publisher have some form of legal responsibility for the damage caused by a bug they chose to keep secret? But that's not the way the industry wants to play the game.

When I first heard about Article 2B, it sounded to me like it could be the ideal vehicle for a law that would motivate publishers to be forthcoming with information about their known bugs. That's because the UCC is a set of default rules governing commercial disputes, so it would not require any regulatory agencies or government spending to have an impact in this regard. But my original optimism soon faded as I discovered how heavily the draft was weighted in favor of sanctifying the very same industry practices that I was worried about.

Reinforcing 'worst practices'

Far from rectifying the imbalance between software publisher and software customer, UCITA will reinforce the software industry in its worst practices. One of the few checks on companies who are willing to risk their customers' well-being with poorly tested and poorly debugged products has been the uncertainty of whether the terms of their shrinkwrap licenses would actually protect them in court. Article 2B would remove that uncertainty, and in the opinion of legal experts representing consumer organizations would allow publishers in most circumstances to hide behind their standard disclaimers of all warranties, mandatory arbitration clauses, exclusion of damage awards, etc.

I don't mean to say that software companies are fundamentally evil organizations out to rob their customers at every turn. The great majority of people who work in the industry want to produce quality software products and want to support their customers properly, and they strive to do so. But software companies are businesses, and businesses will naturally try to get away with anything the traffic will bear. And the software business, for a variety of reasons, is one where the traffic has learned to bear a lot.

Anyone familiar with the history of the software industry knows that the software developer with the best product isn't necessarily the one that wins in the marketplace. A company that puts the extra time and resources into making sure its product is sufficiently tested and has all the promised features will frequently lose out to the company that decides to ship now and take care of the bugs later. We all share some of the blame for that, but the problem now is finding a way to change things for the better.

The demise of innovation

One way or the other, the fight over UCITA is going to mark a watershed in the software industry's development. It will either lead to the day when the software industry fully accepts the responsibilities it has to it customers or the day when it finally rejects those responsibilities. If the latter occurs, I fear for what it will mean to the health of the American software industry down the road, because the piper will be paid sooner or later.

It's already become something of a cliche, but the parallels between the software industry in this country today and the American automobile industry's dominance in the 50s are remarkable. Back then, an industry where the marketing and distribution clout of the big players meant more than quality control, service, safety, and recognizing the customer's real needs failed to see the writing on the wall until it was too late. Foreign competitors with higher-quality products started eating the domestic giants' lunch, while the lawsuits, recalls, and new government regulations came in waves. If the software industry doesn't get its wake-up call soon, it will happen again.

In fact, I think there's some clear signs that commercial software companies in the U.S. aren't the source of progress they once were. Look back at the 1990s and ask yourself what were the biggest software innovations that changed the face of information technology. I'm sure most of us would agree that near the top of the list you'd have the World Wide Web, the open source software movement and the emergence ERP (enterprise resource planning) software in the corporate world. Of course, no great inventions occur in a vacuum, and there are certainly many people including Americans who can legitimately claim some credit for those innovations. Still, the biggest steps toward the web, open source software and ERP were taken by a British researcher working in Switzerland, a Finnish graduate student and a German software company (SAP).

Perhaps it's just a coincidence, but I wonder. I don't think there's a dearth of good ideas floating around here; the issue is where the ground is most fertile for them to take root. Why, for example, did not an Oracle, a Computer Associates or some other American enterprise software giant beat SAP to the punch? The explanations for why we fell behind over here are no doubt innumerable, but as the curmudgeonly Gripe Line guy, I'll offer one of my own: I suspect our big software companies were complacently contemplating what trivial bells and whistles they could add to force their captive customer base into another expensive upgrade. When you know that the cost for your customers to switch to another product is virtually prohibitive, and nobody else is offering anything that's clearly better anyway, why bother with real innovation?

State legislators have been hearing a lot of talk from the software industry's lobbyists about how it's needed to protect America's lead in software innovation. We can only hope enough of them realize that not only is that innovative edge perhaps already mythical, but that passing UCITA will virtually guarantee a society in which technology innovation has little chance to prosper.