Download Consumer`s Bill of Rights (Cem Kaner``s Blog)

Consumer’s Bill of Rights
Cem Kaner’s Blog
http://blackbox.cs.fit.edu/blog/kaner/archives/000124.html
1. Let the customer see the contract
before the sale.
• It should be easy for customers of mass-market
software products and computer information
contracts to compare the contract terms for a
product, or for competing products, before they
download, use, or pay for a product.
• NOTE: This is not a radical principle. American
buyers of all types of consumer products that cost
more than $15 are entitled to see the contract (at a
minimum, the warranties in the contract) before
the sale.
2. Disclose known defects.
• The software company or service provider
must disclose the defects that it knows
about to potential customers, in a way that
is likely to be understood by a typical
member of the market for that product or
service.
3. The product (or information service) must
live up to the manufacturer's and seller's
claims. (part 1)
• A statement by the vendor (manufacturer or seller) about
the product that is intended to describe the product to
potential customers is a warranty, a promise that the
product will work as described.
• Warranties by sellers are defined in UCC Article 2 Section
313. Manufacturer liability is clarified (manufacturers are
liable for claims they make in ads and in the manual) in a
set of clarifying amendments to Article 2 that have now
been approved by the Permanent Editorial Board for the
UCC, which will be probably introduced in state
legislatures starting early in 2004.
3. The product (or information service) must
live up to the manufacturer's and seller's
claims. (part 2)
• A In addition, it is a deceptive trade practice in most states
(perhaps all) to make claims about the product that are
incorrect and make the product more attractive.
• For example, under the Uniform Deceptive Trade Practices
Act, Section 2(5) it is unlawfully deceptive to represent
"that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that
they do not have."
• UCITA was designed to pull software out of the scope of
laws like this, which it did by defining software
transactions as neither goods nor services but licenses. We
should get rid of this cleverly created ambiguity.
4. User has right to see and approve all transfers of
information from her computer. (part 1)
• Before an application transmits any data
from the user's computer, the user should
have the ability to see what's being sent.
• If the message is encrypted, the user should
be shown an unencrypted version.
• On seeing the message, the user should be
able to refuse to send it.
4. User has right to see and approve all transfers of
information from her computer. (part 2)
• This may cause the application to cancel a
transaction (such as a sale that depends on
transmission of a valid credit card number), but
transmission of data from the user's machine
without the user's knowledge or in spite of the
user's refusal should be prosecutable as computer
tampering.
5. A software vendor may not block customer from
accessing his own data without court approval.
• Comments?
6. A software vendor may not prematurely
terminate a license without court approval. (part 1)
• The issue of vendor self-help (early
termination of a software contract without a
supporting court order) was debated at great
length through the UCITA process.
• To turn off a customer's access to software
that runs on the customer's machine, the
vendor should get an injunction (a court
order).
6. A software vendor may not prematurely
terminate a license without court approval. (part 2)
• However, perhaps a vendor should be able
to deny a customer access to software
running on the vendor's machine without
getting an injunction (though the unfairlyterminated customer should be allowed to
get a court order to restore its access.)
7. Mass-market customers may criticize products,
publish benchmark study results, and make fair use
of a product. (part 1)
• Some software licenses bar the customer from
publishing criticisms of the product, or publishing
comparisons of this product with others or using
screenshots or product graphics to satirize or
disparage the product or the company.
• Under the Copyright Act, you are allowed to
reproduce part of a copyrighted work in order to
criticize it, comment on it, teach from it, and so
on.
7. Mass-market customers may criticize products,
publish benchmark study results, and make fair use
of a product. (part 2)
• Software publishers shouldn't be able to use
"license" contracts to bar their mass-market
customers from the type of free speech that
the Federal laws (including the Copyright
Act) have consistently protected.
8. The user may reverse engineer
the software.(part 1)
• Software licenses routinely ban reverse
engineering, but American courts routinely say
that reverse engineering is fair use, permissible
under the Copyright Act.
• Recently, California courts have started enforcing
no-reverse-engineering bans in software licenses.
• This is a big problem.
• Software publishers claim that reverse engineering
is a way to steal their work.
8. The user may reverse engineer
the software.(part 2)
• There are many legitimate, important uses of reverse
engineering, such as exposing security holes in the
software, exposing and fixing bugs (that the manufacturer
might not fix because it is unwilling, unable, or no longer
in business), exposing copyright violations or fraudulent
claims by the manufacturer, or achieving interoperability
(making the product work with another product or device).
• These benefit or protect the customer but do not help
anyone unfairly compete with the manufacturer.
9. Mass-market software should be
transferrable.
• Under the First Sale Doctrine, someone who buys a
copyrighted product (like a book) can lend it, sell it, or
give it away without having to get permission of the
original publisher or author.
• Similarly, if you buy a car, you don't have to get the car
manufacturer's permission to lend, sell, or donate your car.
• UCITA Section 503(2)allows mass-market software
publishers to take away their customers' rights to transfer
software that they've paid for.
• It should not.
10. When software is embedded in a product, the
law governing the product should govern the
software. (part 1)
• Think of the software that controls the fuel injectors in a
car.
• Should the car manufacturer be allowed to license this
software instead of supplying it under the basic contract
for the sale of the car?
• Under extended pressure from the software industry, the
Article 2 amendments specify that software (information)
is not "goods" and so is not within the scope of Article 2,
even though courts have been consistently applying Article
2 to packaged software transactions since 1970.
10. When software is embedded in a product, the
law governing the product should govern the
software. (part 2)
• In the 48 states that have not adopted UCITA, this
amendment would mean that there is no law in
that state that governs transactions in software.
• The courts would have to reason by analogy,
either to UCITA or to UCC 2 or to something else.
• When a product includes both hardware (the car)
and software (the fuel injector software, braking
software, etc.), amended Article 2 allows the court
to apply Article 2 to the hardware and other law to
the software.
10. When software is embedded in a product, the
law governing the product should govern the
software. (part 3)
• Thus different warranty rules could apply and even though
you could sell your car used without paying a fee to the
manufacturer, you might not be able to transfer the car's
software without paying that fee.
• Vendors should not be able to play these kinds of games.
• "Embedded software" is itself a highly ambiguous term. In
those cases in which it is unclear whether software is
embedded or not, the law should treat the software as
embedded.