By Danny Faught
The time has come for software consumer protection. Have you ever been frustrated by a software application?
If you’ve ever sat in front of a computer, chances are high that you’ve run across a misbehaving application.
What usually happens in the worst cases is that the software goes back on the shelf to collect dust — the software vendor wins. After all, many people are uncomfortable with their ability to operate a computer. The glitch is probably the user’s fault, right?
Perhaps it’s a fear of technology that causes people to apply different standards to software products than simpler products that are more familiar. If you buy a toaster that doesn’t work, you demand a refund or replacement. If your car is a lemon, you take it back to the dealership. If you’ve taken reasonable steps to resolve a problem with your software, why not treat it the same way?
Another factor is the sign at the software store that says “No refunds on opened software packages,” which is meant to protect the retailer from piracy. You can exchange the software for another package just like it, bugs and all. That’s no help.
Take a look at the book “Bad Software” by Cem Kaner and David Pels for some software consumer enlightenment. The heading right on page 1 says “Asking for a Refund.” The book will help you understand your options if you buy a defective software product, and it will help you deal with the software publisher or retailer in a way that’s fair to both parties. The book is endorsed by consumer advocate Ralph Nader.
Speaking of fair, have you ever stopped to read the “click-wrap” license agreement that pops up when you install a software application? There are some heinous things in there, usually stating that the vendor makes no warranty whatsoever that the software will do anything useful, and if it blows up your computer, they’re not responsible for that either.
Now the good news — much of this is not legally enforceable. And the bad news — the legal landscape in the United States is changing, with a tendency toward giving vendors legislative backing for waiving their responsibility for delivering a quality product.
This change in the landscape is focused on a draft law called the Uniform Computer Information Transactions Act, or UCITA. Do you remember studying the Uniform Commercial Code in school? That’s what gives you the basic warranties that ensure you can take that defective toaster back to the store.
UCITA started out as an update to the Uniform Commercial Code, but the controversy surrounding it resulted in an unprecedented split between the two bodies that traditionally jointly sponsor UCC updates.
So we now have UCITA instead, a draft law that has been sent to the state legislatures and recommended for approval by the one organization that completed the draft.
Why all the controversy? Arguments often are centered on how the law should be interpreted. Opponents of UCITA argue that it allows vendors to specify terms of the sale after the customer has made the purchase. By the time you see that click-wrap license on your screen, you’ve already bought it.
They say it allows vendors to remotely disable the software if you don’t pay your technical support bills, giving you no due process and a frightening back door that can shut down your business.
Advocates of UCITA such as Ray Nimmer, a primary author of UCITA who lives in Houston, focus on the type of software contracts that are explicitly negotiated between the vendor and the customer, for example, when a large company requests custom software development. They seem to imply that the new law won’t apply in the same way when you pull a box of software off the shelf at the store.
UCITA has already passed in Virginia and Maryland. Iowa has passed “bomb-shelter” legislation that actually shields its residents from other states that pass UCITA.
In Texas, UCITA has been introduced in both the House (H.B.1785) and the Senate (S.B. 709), and it has been referred to the Business and Commerce Committee.
A hearing has been requested, but the odds of getting the hearing before the end of the current legislative session are dwindling.
Texas Sen. John Carona’s office tells me that they are seeking an interim study after the legislative session, to improve the chances of passage when the Legislature reconvenes in 2003.
For more information on UCITA, see www.cptech.org/ecom/ucita/ and www.4cite.org.
Danny R. Faught is proprietor of Fort Worth-based Tejas Software Consulting. His e-mail address is faught@tejasconsulting.com.
Published in Dallas-Fort Worth Tech Biz 4/30/2001