Nev Dull wrote:
> Forwarded-by: Peter Langston <email@example.com>
> It's Your Problem
> (Not Theirs)
> (c)Copyright 1998 James Gleick
> I seem to remember that when I subscribed to, oh, The New Yorker, I sent
> in some money and eventually the magazine started arriving in my mailbox.
> Not so simple in the digital era. The other day I used my computer to
> subscribe to Slate, an on-line magazine owned by Microsoft, and after I gave
> up my name, E-mail address, postal address, credit-card number, and choice
> of gift (I declined the free umbrella), the screen presented me with the
> first few lines of a 2,000-word contract. Below this was a button marked "I
> Agree." There was also a button marked "Cancel." I looked in vain for a
> button marked "Let's Negotiate -- My Lawyer Will Be in Touch with Your
> I realize now that before you read any further we should agree on some
> ground rules.
> First of all, by reading Fast Forward you confirm your acceptance of, and
> agree to be bound by, and promise never to call your lawyer to make light
> remarks about, this Agreement.
> Further, you're not buying a car or a toaster here. This department "makes
> no express or implied representations or warranties to you regarding the
> usability, condition, or operation thereof. We do not warrant that access
> or use will be uninterrupted or error-free or that we will meet any
> particular criteria of performance or quality". No matter how bad the
> product is, it's your problem, not ours.
> And after all this, if you think you've found a loophole and actually wish
> to sue, start by calling your travel agent, because you consent to the
> exclusive jurisdiction and venue of courts in King County, Wash. Oh, no,
> wait -- that's Microsoft.
> "Yes, it's absurd," says Michael Kinsley, Slate's editor. But no more
> absurd, he adds, than agreements at other sites. (Sure enough, The New York
> Times has a long contract for its own on-line subscribers.) Internet
> magazines are more complicated, interactive, and bug-prone than their print
> ancestors and thus require, in a litigious world, more complicated legal
> armor. You aren't really expected to understand it. "The entire software
> industry, for that matter, depends on its customers not really reading these
> things before clicking 'I accept,'" Kinsley says.
> The software industry also relies on a clever legal twist: the notion that
> consumers are entering into ongoing licensing agreements with the
> manufacturers. You may think, as you walk out of a store, package under your
> arm, that you have bought that software. The industry claims that you have
> merely licensed certain limited rights to use it. It says so right there in
> the agreement you will find under the shrinkwrap and toss away unread.
> As a licensee, you commit yourself to a set of continuing duties. In the
> case of Slate, for example, you agree to supervise any usage by minors and
> to notify Microsoft "promptly" -- even though you've already paid -- if you
> change your billing address, lose your credit card or "become aware of a
> potential breach of security." Kinsley says he persuaded the lawyers to drop
> a clause that would have required all his readers to maintain their computer
> equipment in working order.
> Are all these shrinkwrap and "clickwrap" agreements really enforceable?
> After all, the manufacturers know perfectly well that customers have neither
> the time nor the expertise to read them, and often the agreements are hidden
> in boxes until well after the customers have paid up. No one knows for sure.
> In real life, manufacturers almost never try to enforce the sillier terms,
> and most of the damages people suffer from defective software tend to be
> in the nature of lost time -- hours spent cursing the computer or waiting on
> hold for technical support -- and it's hard to sue over that.
> Steve Tapia, a Microsoft corporate attorney, says it just wouldn't be fair
> to hold software to the same standards as, say, a car. That's lucky for him,
> because car makers have found it very expensive to sell cars with
> defects -- especially defects they knew about. They can't just disclaim any
> obligation to guarantee their products. Software is different, Tapia says,
> "because personal computer software may be used for a myriad of different
> purposes on an infinite amount of hardware combinations."
> In the early days of personal computers, users were mostly technical types
> willing to wrestle with flawed software. They forgave some of the bugs, in
> versions 1.0, anyway. Now that computers are a mass-market product, they
> reach more naive customers who might actually expect their software to work.
> That must be why dozens of companies feel compelled to make users agree that
> they're on their own if they use the products "in hazardous environments
> requiring fail-safe performance, such as in the operation of nuclear
> facilities, aircraft navigation or aircraft communication systems, air
> traffic control, direct life support machines, or weapons systems, in which
> failure of the software could lead to death, personal injury, or severe
> physical or environmental damage. "
> Some legal departments have been getting more creative lately. Customers
> who download Network Associates' antivirus software "agree" -- click --
> to clauses designed to give the company control of press coverage: "The
> customer shall not disclose the results of any benchmark test to any third
> party without Network Associates' prior written approval"; and "the customer
> will not publish reviews of the product without prior consent."
> Meanwhile, the agreement that comes with Microsoft Agent, software that
> lets people create cute interactive animated figures, holds that you may
> not use the characters "to disparage Microsoft, its products or services."
> Will the next version of Microsoft's operating system have a clause like
> that? I'll have to find a typewriter?
> Perhaps some of these contract terms are striding defiantly past the limits
> of existing law -- but the law is likely to change shortly, in all 50 states.
> A major revision is under way in the foundation of American commercial law,
> the Uniform Commercial Code. The drafters, a committee of lawyers established
> for the purpose, have created a new statute, Article 2B, specifically to
> cover software and other information products. To the horror of some consumer
> groups, the current draft <http://www.law.uh.edu/ucc2b/> -- expected to go
> to the state legislatures in January -- ratifies the most aggressive
> provisions of today's software licenses.
> It would set into law the idea that software customers aren't buying
> "goods" but merely licensing certain rights. It makes the licenses binding
> even when customers have not read them, when the customers casually clicked
> an on-line button, and when the customers could not have seen the agreements
> until after buying the products.
> The draft legitimizes confidentiality and nondisclosure clauses like
> Network Associates', forbidding users to publish reviews of a product. And
> it would explicitly allow manufacturers to disclaim warranties; it even
> suggests language: "this [information] [computer program] is being provided
> with all faults, and the entire risk as to satisfactory quality,
> performance, accuracy, and effort is with the user."
> "It's the drafting committee's view that bugs are inevitable in software
> and that makes software different," says Cem Kaner
> <http://www.badsoftware.com/uccindex.htm>, a lawyer and software consultant
> opposing these provisions. He argues that Article 2B in its present form
> will be a disaster not only for consumers but also for the more honorable
> software companies; it will reward companies that try to grab market share
> by rushing to market with buggy software.
> "If there are no refund rights, no lawsuit rights, no legal disincentives,
> then companies that ship prematurely enjoy an unfair advantage," Kaner says.
> "In the process of protecting the worst companies from the consequences of
> their worst products, we pressure better companies to do a worse job."
> From: RISKS DIGEST 19.73
> From: "Simson L. Garfinkel" <firstname.lastname@example.org>
> Subject: Defeat New Copyright Legislation
> [This is Simson's article in *The Boston Globe*, 7 May 1998. PGN]
> Two bills that are up for a vote in the House of Representatives could
> seriously jeopardize the right of Americans to read in the next century.
> The backers of these bills say that the legislation is necessary to protect
> the interests of creative individuals and publishers in the digital age.
> But the legislation goes further by allow publishers to repeal the "fair
> use" provisions of today's copyright law and creating a whole new category
> of intellectual property.
> The first bill, strongly backed by the Clinton Administration, is the "WIPO
> Copyright Treaties Implementation Act," (H. R. 2281). This bill is designed
> to implement sections of the World Intellectual Property Organization treaty
> that was adopted back in December 1996. The bill creates a new kind of crime
> in US law, the crime of "circumvention." It's a kind of crime that one would
> expect in George Orwell's 1984, rather than in the America of the next
> H.R. 2281 is being supported by big publishing interests including Time
> Warner, Viacom, the Motion Picture Association of America, and Microsoft.
> These organizations are terrified by the way computers and digital networks
> make it easy to copy books, songs, videos and computer programs. For years
> these groups have tried to stop illegal copying with copy-protection
> systems. H.R. 2281 would make it a crime to subvert these systems for any
> purpose whatsoever.
> The problem with this legislation, says Adam Eisgrau, Legislative Counsel
> of the American Library Association's Washington Office, is that many
> publishers are likely to use copy-protection systems to restrict activities
> that are otherwise lawful.
> For example, many web sites on the Internet today as you to register with
> your name and e-mail address before you can view the information that they
> contain. A substantial number of people bristle at this notion, and they
> have figured out ways to circumvent the registration process. Under the
> legislation, these people could be sued and awarded $200 to $2,500 in
> statutory damages for each web page that they viewed.
> And its not just consumer groups that are upset about the legislation. As
> it currently exists, the legislation would make it a felony for engineers
> to open up competing products and see how they work -- "something that is
> essential for achieving interoperability in the industry," says Lowell
> Sachs, the government affairs representative of Sun Microsystems. "So far,
> the House has failed to focus upon the very real threat that its actions
> could pose to competition and innovation in the United State."
> The criminal provisions of H.R. 2281 apply even if the offender is legally
> entitled to the information that is under copyright management control. For
> example, the Supreme Court has ruled that individuals have a right to record
> movies off the air and view them at a later time. Nevertheless, the film
> industry doesn't want us to make our own tapes -- they want us to buy
> pre-recorded tapes. In the future, the film industry might create a new
> copyright protection system that prevents home taping off the Internet
> unless a person pays an additional fee. Under the proposed legislation, a
> person who circumvented this new copy-protection system and made their own
> legal home copy would nevertheless be guilty of circumvention, and
> potentially subject to a fine of $500,000 and 5 years imprisonment for the
> first offense.
> The authors of the bill "are very clever," says Adam Eisgrau. "They don't
> repeal the legal basis of fair use," which would create a huge political
> outcry. Instead, the legislation "creates a new law which makes fair use
> impossible to exercise, unless the appropriate price is paid." And that's
> not Fair Use at all.
> The second bill that should give lawmakers pause is H.R. 2652, the
> "Collections of Information Antipiracy Act." This law, if passed, would give
> legal protection to the contents of databases over and above what is
> provided by today's copyright law.
> The database law finds its genesis in a 1991 Supreme Court decision, Feist
> Publications, Inc. v. Rural Telephone Service Co., in which the Court ruled
> that the factual information in a telephone white pages -- a large database
> of names, addresses and phone numbers -- cannot be copyrighted. This decision
> is one of the key factors responsible for the proliferation of "white pages"
> services on the Internet like Switchboard.COM.
> H.R. 2652 would basically overturn the Feist decision, making it a crime to
> extract date from a "collection of information" and use it in a way that
> harms the real or potential economic interest of the collection's owner.
> One of the fundamental problems with this bill, says the EFF, is that
> there's no limit to the kind of information that can receive protection once
> it is put into a databank. In particular, government information and
> information that's in that's already in the public domain could be dropped
> into a computerized databank and then receive new, copyright-like
> protections. And the Act doesn't have any exemptions for "fair use."
> So how could all of this impact on our right to read? Just ask Richard
> Stallman, founder of the Free Software Foundation. In his story "The Right
> To Read," Stallman argues convincingly that new restrictions on information
> will ultimately force people to pay for every book and article that they
> read, whether they are at home, at work, or at school.
> Stallman's story is a science fiction parable in which one college student
> risks imprisonment by lending his computer to his girlfriend and telling
> her his password -- in effect, giving her access to books that he has
> licensed for himself. "Dan knew she came from a middle-class family and
> could hardly afford the tuition, let alone her reading fees. Reading his
> books might be the only way she could graduate," Stallman writes. You can
> find the entire story at http://www.gnu.org/philosophy/right-to-read.html
> Indeed, if you want find out more about these issues, there's no better
> place to turn than the Web. A group opposed to the legislation called the
> Digital Future Coalition has put together a website at http://www.dfc.org/
> explaining the problems. Meanwhile, a group of publishers have banded
> together and created their own competing group, the Creative Incentive
> Coalition. You can find its website at http://www.cic.org/. Finally, you
> can download the full text of these bills from the Library of Congress's
> Thomas system at http://thomas.loc.gov/.
> But hurry, while you still have a right to read.