Fortuantely, only about 5% or so of the laws actually passed by this
"useful" group ever actually make it into every state's law. For as
unproductive and unsuccessful as they are, it's a wonder the commission
exists. I'm not too frightened about UCITA becoming a bill. Especially not
in my state where we have a referrendum and initiative.
> -----Original Message-----
> From: James J. Lippard [mailto:[EMAIL PROTECTED]]
> Sent: Thursday, September 16, 1999 6:00 AM
> To: [EMAIL PROTECTED]
> Subject: Re: Kurt's Closet on qmail
>
>
> There is proposed new law on the matter--recent revisions to the
> Uniform Commercial Code, Section 2B, a/k/a UCITA (Uniform Computer
> Information Transactions Act). It has been approved by the National
> Conference of Commissioners for Uniform State Law and will be
> introduced
> in most state legislatures early next year. Do a web search
> for "UCITA"
> or "UCC 2B" and you'll find all kinds of opposition web pages.
>
> Jim Lippard [EMAIL PROTECTED] http://www.discord.org/
> Unsolicited bulk email charge: $500/message. Don't send me any.
> PGP Fingerprint: 0C1F FE18 D311 1792 5EA8 43C8 7AD2 B485 DE75 841C
>
> On 16 Sep 1999 [EMAIL PROTECTED] wrote:
>
> > >craig <[EMAIL PROTECTED]> writes:
> > >
> > >> I was told last night by an IP lawyer that
> "click-through licenses have
> > >> been upheld in court".
> > >
> > >Yes, I believe that's been the case for a while. A click on ACCEPT
> > >appears to be legally roughly equivalent to the signature
> on a contract,
> > >provided you can prove the person did that (signatures are
> a bit more
> > >permanent and lasting and easier to establish). This is a
> Good Thing; if
> > >this weren't the case, ISP AUPs and the like would be
> uninforceable and
> > >e-commerce would become very difficult. I don't have a
> problem with that.
> >
> > Yes, that's the reasoning, and I understand it perfectly well...to a
> > point.
> >
> > Exactly *who* are the parties to the "[rough] equivalent to the
> > signature on a contract", though?
> >
> > Remember, the assumption here is that the transaction between the
> > parties (FTP client and FTP server operators and their correlative
> > software agents; or customer and salesperson exchanging money and
> > shrinkwrap software) has *already happened*.
> >
> > After that transaction, which is an *implied contract* (I assume),
> > there can be *no* after-the-fact changes to the contract without
> > *both* parties agreeing to that.
> >
> > When you're *later* running that computer program, you are *not*
> > engaging in contract negotiations with a second party. In fact,
> > you are dealing with no legally recognized entity at all. You
> > can't sue it for making false representations, for example.
> >
> > I'm not interested in what we can *infer* that software did based
> > on the code. I'm only interested in what *legislation* exists
> > that grants software the right to, on its own volition, enter
> > into an enforceable contract with an individual such that the
> > individual is liable for damages, can be imprisoned, and so on,
> > when the *software* is under no such legal liabilities.
> >
> > Put another way: if you buy a JimBobBoy Toy for your 5-year old,
> > take it out of the store, assuming the transaction has completed,
> > what right does that *toy* have to suddenly, two months later,
> > "decide" it will no longer "play" with your son as it has (perhaps
> > implicitly) been promised to do in the past *unless* you tell it
> > you agree to some *new* license terms?
> >
> > I'm aware of *no* legal or ethical compulsion under which I should
> > be required to tell the truth to *software*. To another person
> > *via* software as a recording device, yes -- if that's part of
> > what is clearly a valid contract-agreement process, for example.
> >
> > But when I'm running software on my computer, it's unconnected to
> > the net, or if I've *clearly* been led to believe that I've
> > purchased it (or obtained it for "free" via download), then I can't
> > see how any attempt by that software to get me to engage in
> *further*
> > contract negotiations have any validity.
> >
> > Now, I'm a *totally* committed Christian who doesn't believe it's
> > right to lie, cheat, steal, or kill, *ever*, period.
> >
> > Yet I have no problem lying to a computer program. (Okay, honesty
> > time, maybe I *have*, in the past, and thus not clicked-through
> > a license I didn't want to accept. But no longer, now that
> I clearly
> > see the issues.)
> >
> > As far as convenience for etrade and such: poppycock. First, the
> > courts' jobs are to interpret the *law*, not invent new law for
> > the convenience of industry. That's for the legislatures to
> > undertake.
> >
> > Second, in any situation where a vendor chooses to use a manner of
> > delivery that creates the clear impression that a transaction has
> > been completed as of purchase or download, that vendor must be
> > interpreted, *legally*, to have agreed to continue abiding by the
> > terms of the transaction ever after, regardless of what it claims
> > its software might or might not ask, or be told, by its user.
> >
> > If the vendor disagreed with that, it is up to the *vendor* to
> > choose a *different* method of delivery. E.g. provide
> *non*-anonymous
> > FTP access via a login/password combination after getting something
> > akin to an online signature verifying that the potential customer
> > agrees to the license terms *up front*.
> >
> > It's called "the cost of doing business". And it's trivial, both
> > for FTP access to "free" software that tries to add post-transaction
> > constraints, as well as for overshelf sales of shrink-wrap software,
> > as well as telephone-based sales of shrink-wrap software.
> >
> > In all cases, if the *legislation* doesn't grant
> independently acting
> > software the rights to act on behalf of a party, *or* if the *other*
> > party in a transaction is not warned ahead of time that a seemingly
> > "complete" transaction is going to, in fact, be further negotiated
> > *by that agent* (the software) *afterwards*, then the vendor has
> > committed *fraud* by claiming that the terms of the agreement are
> > modified *after* the transaction.
> >
> > In my opinion, unless somebody can show legislation that itself
> > provides clear, up-front notification to consumers of software
> > (via shrink-wrap transactions or anon-FTP downloads of "free"
> > software) that they were going to have to deal with *software*
> > as if they were *duly appointed agents* of the party with whom
> > they would otherwise have believed they'd *completed* a transaction
> > (with contract, implied or otherwise)...
> >
> > ...we have the potential for a *huge* class-action suit here.
> >
> > So, please, where's the USC or other code I look up that grants
> > such after-the-fact authorization of renegotiation of contract
> > by software?
> >
> > >I'd double-check some of the rest of this with another IP
> lawyer. *Until
> > >you have accepted the contract* you aren't bound by its
> provisions; you're
> >
> > You've accepted the contract that was implied during the
> transaction.
> > After that, nothing you say or do on your computer constitutes
> > modification of a contract, or agreement with a contract, or
> > anything similar, since *you aren't negotiating with anybody*.
> >
> > >In order to make you agree to the
> > >contract as a condition of getting a copy of the software,
> I'm pretty sure
> > >they have to *make* that a condition; that's why if you
> download, say,
> > >Postfix from IBM's web site, they put the license up on
> the screen and
> > >make you accept it before you get a copy.
> >
> > Excellent. That's as it *should* be. I don't mind one bit a
> > splash screen that *confirms* (but cannot reduce) those terms,
> > e.g. in case somebody illegally puts up the copy on another
> > web site without the pre-download protection.
> >
> > >So the only way I can see the above working is if somehow
> you're not in
> > >legal possession of the software after you rejected the
> contract, which
> > >makes no sense to me at all.
> >
> > No, the case I mean is where I accepted the *implicit*, or
> *explicit*,
> > contract when I downloaded or bought software.
> >
> > Then I run the software, stand-alone mode, and it tells me I must
> > accept *further* conditions to run it.
> >
> > I claim that, at this point, I have no ethical or legal compunction
> > to tell the truth to a piece of software, since it is, in this
> > case, not in any way acting as a duly appointed agent for the
> > party of a contract, especially not in a contract negotiation that
> > pertains to my use of that software...since I already *negotiated*
> > that contract.
> >
> > >Copyright law in the United States specifically gives you
> the right to
> > >make whatever copies of software are necessary for the
> normal running of
> > >the software package. However, I can see the argument
> that in this case,
> > >this only implies your right to run the software and get
> that dialog box;
> > >you're then presented with a contract you have to agree to
> to continue.
> >
> > I argue that I'm presented with a *purported* contract, that has no
> > more legal or ethical force than when your three-year-old daughter
> > asks you "daddy, when I grow up, will you marry me?" and you say
> > "yes, dear".
> >
> > >So my non-lawyer *opinion* is that you're not required to
> destroy the
> > >software, you still have a legal copy, and you're permitted to make
> > >archival and backup copies of it and run it as many times
> as you want to
> > >see that dialog box, but you can't do any more than that
> with it without
> > >accepting the contract.
> >
> > Just to reiterate, I already accepted the only *legally and
> ethically
> > binding* contract on the transaction that resulted in my getting
> > a copy of the software.
> >
> > If the software wants to play games with me and pretend I
> have to agree
> > to other terms, I'm perfectly within my rights to lie to it and say
> > "ACCEPT", then brazenly violate *those terms*, as long as I'm still
> > within the terms of the *real* contract.
> >
> > (Practically, I realize that if some judge has ruled otherwise, this
> > might not be smart. But I claim it *is* entirely legal and ethical
> > *unless* someone can show the legislation that informed me,
> up front,
> > that I should be prepared to continue negotations, post-transaction,
> > with an automaton.)
> >
> > tq vm, (burley)
> >
>
>
