UCITA repost

[Contestant #3]

Here is some of the UCITA information that I posted on 8-17 in GQ:

What I was trying to talk about is called the Uniform Computer Information Transactions Act or UCITA.

You can get the skinny at this link: http://www.mercurycenter.com/svtech/...s/dg080199.htm

As it turns out, I was wrong in my rememberence that this was a federal bill. Rather it is bill to be passed in the legislature of each state as endorsed by the National Conference of Commissioners for Uniform State Laws.

Among the shitty things for software consumers like you an me we have:

*Companies could legally disclaim any obligation to sell products that work -- even if they knew about serious defects before the sale and didn't disclose them

*Under some circumstances, a software vendor could summarily disable a customer software remotely if there was an unresolved dispute, even if that action disrupted and damaged the customer's business; in theory, this would be an electronic ``repossession'' of the product.

*Reverse engineering, used by security experts to examine software for viruses and the like, could be prohibited.

AND, the one that I mentioned in the OP,

*Buyers could be prohibited from commenting publicly about a product's quality or performance.

also posted:


According to additional research that I have done, this UCITA is also very bad juju for writers. In fact, here's an entire website for the express purpose of explaining why you as a writer want to actively oppose this bill: http://www.nwu.org//pic/ucita2.htm




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Contestant #3

[manhattan]

Here’s a link to the latest draft of the proposed legislation that I could find. There was apparently a later draft approved at the meeting referred to in the beginning of this draft, but the link does not work. I'll keep looking later.

http://<a href="http://www.law.upenn...itam99.htm</a>

I haven’t read it yet, so I’m not qualified to respond to the post.


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Livin' on Tums, Vitamin E and Rogaine

[manhattan]

Damn.

http://www.law.upenn.edu/library/ulc/ucita/citam99.htm

[David B]

C3 said:

*Buyers could be prohibited from commenting publicly about a product's quality or performance.

Hmmm. I just don't think this would fly. It obviously goes completely against the First Amendment and would almost certainly be struck down the instant it were passed.

[danielnsmith]

David B,

The first amendment only protects a persons right to express opinion. The key is to state something as an opinion.

If someone sold a crappy program to you and you went out in public and said, "This program is crap!", the is libel. You are undermining that persons credibility. If you stated in public, "I think the program is crap!", you have just stated an opinion and are therefor protected under the 1st amendment.

[Contestant #3]

I beg of you to read the links that I provided...

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Contestant #3

[David B]

Daniel said:

The first amendment only protects a persons right to express opinion. The key is to state something as an opinion.

I'm sorry, but you're wrong. If I say that it is a fact that creationists are anti-science bigots, I am protected.

If someone sold a crappy program to you and you went out in public and said, "This program is crap!", the is libel. You are undermining that persons credibility.

First of all, the best defense against a libel charge is the truth. If the program is crap, then it doesn't matter if you've undermined somebody's credibility. That aside, I call say right now that there are many crappy programs out there. I could list them. Nobody could sue me (let me clarify: anybody could sue me, but they would lose). Calling something "crap" is not libel. Saying the author of a program was a pedophile, on the other hand, could be libel/slander (provided it wasn't true and that I knew it wasn't true).

If you stated in public, "I think the program is crap!", you have just stated an opinion and are therefor protected under the 1st amendment.

So you think the only difference is putting the words, "I think" in front of it? I'm sorry, but you're just plain wrong. Note that it's not just that I think you're wrong -- you are wrong.

C3: I did read one of the links -- the one on writers. Frankly, I don't know if their complaints are valid or not. That's why I only commented on the one thing that looked blatantly like a First Amendment violation.

[The Ryan]

David B
Moderator posted 10-04-1999 01:48 PM

C3 said:

quote:
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*Buyers could be prohibited from commenting publicly about a product's quality or performance.
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Hmmm. I just don't think this would fly. It obviously goes completely against the First Amendment and would almost certainly be struck down the instant it were passed.

The First Amendment only applies to the government; it does not prohibit companies from refusing service to anyone that doesn't sign a non-disclosure agreement. Note that the companies would not actually be prohibiting free speech; they would simply be offering consumers the option of accepting limitations on their freedom of expression in return for a product. Should any consumer violate their agreement, the company would sue them for breach of contract rather than for libel or any other charge directly related to speech. So what's the problem? Don't you think it's acceptable for consumers to give up basic rights in return for such magnificant products as Windows 98? Don't you trust Bill Gates to do what's best for all of us?

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-Ryan
" 'Ideas on Earth were badges of friendship or enmity. Their content did not matter.' " -Kurt Vonnegut, Breakfast of Champions

First of all, the best defense against a libel charge is the truth.

Well, no, not really. Truth as a defense is actually kind of the last place you want to be. First you wanna run through things like privilege, immunity, public figure, statement of opinion, etc. Truth is too messy to try to prove, usually, and generally requires resolution by a trier of fact (jury), whereas the other defenses are a matter of law and can be determined by a judge.

The First Amendment only applies to the government; it does not prohibit companies from refusing service to anyone that doesn't sign a non-disclosure agreement. Note that the companies would not actually be prohibiting free speech; they would simply be offering consumers the option of accepting limitations on their freedom of expression in return for a product.

And this happens all the time in commercial contexts, but admittedly rarely in dealing with consumers. Companies license the use of patented processes, for example, subject to confidentiality agreements. Businesses provide information to each other on the understanding that that information not be divulged to third parties -- it's called "trade secrets." I've signed, and promulgated, any number of such agreements myself. That being said, it is certainly true that it is not (yet) a common practice to impose such restrictions on the ordinary individual consumer.

-Melin, Esq.

[manhattan]

Truth as a defense is actually kind of the last place you want to be. First you wanna run through things like privilege, immunity, public figure, statement of opinion, etc.

Melin is exactly right. If you find yourself facing a lawsuit for libel (and most other things) you have to get yourself in the mindset that the most important thing is to make it go away. You can’t predict what will happen if you let a case go to the jury. I’ll add standing, jurisdiction, failure to assert a specific claim and failure to assert actual damages to the list. Not that I have any experience with this sort of thing, you understand…

From the client’s perspective, this is, by a wide margin, The Most Frustrating Thing on Earth. You want to go out and say to a jury, a judge, the press and the whole world, "It’s not true! Here’s the truth! I have proof!" But this is a bad idea. Listen to your lawyer. Make it go away. Even on a technicality.


Oh, and Melin, what do you think about this whole UCITA thing? I know that software companies have for years claimed that they were selling site licenses (mostly to keep legal claims against pirating), but this seems like a pretty big leap forward in terms of the "license" that consumers of software would have to agree to. Are there consumer protection or other laws that would supersede this proposed legislation in most states? And how does my implied warranty of merchantability figure into all this?

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Livin' on Tums, Vitamin E and Rogaine

[David B]

Ryan said:

The First Amendment only applies to the government; it does not prohibit companies from refusing service to anyone that doesn't sign a non-disclosure agreement.

True, but I don't think that's what we're talking about here. If I misunderstood the post, I'm sure C3 will let me know, but he specifically claimed this law would prohibit people from commenting about a product. That would be the government violating the First Amendment.

Melin said:

Well, no, not really. Truth as a defense is actually kind of the last place you want to be.

Oh, I don't know about that. I will say that I didn't really mean "best." I was trying to think of a phrase that I half-remember. Thinking about it more, I believe it was something like, "Truth is an absolute defense against libel."

First you wanna run through things like privilege, immunity, public figure, statement of opinion, etc. Truth is too messy to try to prove, usually, and generally requires resolution by a trier of fact (jury), whereas the other defenses are a matter of law and can be determined by a judge.

True, but if you try things like privilege, you end up looking like you are trying to find a loophole or technicality, and the issue may never actually be resolved. For some, this may be fine. For others, not so much so.

True, but if you try things like privilege, you end up looking like you are trying to find a loophole or technicality, and the issue may never actually be resolved. For some, this may be fine. For others, not so much so.

Hmm. My experience is that unless somebody has LOTS of money, and cares LOTS about the principle at stake, a win is a win is a win (NOT as true in professional liability cases). It's a pretty scary thing to put your fate -- financial or otherwise -- in the hands of twelve (or six) people sitting on a jury, and most people are happy to win on any theory they can get. I'll take a technical or procedural win any day of the week -- at my first law firm they used to call me "Melin on Procedure." Privilege isn't just a loophole, either. Privilege, in the defamation context, grows out of various constitutional protections or other public policy, things that are near and dear to your heart, David.

If I misunderstood the post, I'm sure C3 will let me know, but he specifically claimed this law would prohibit people from commenting about a product. That would be the government violating the First Amendment.

Don't put TOO much faith in the First Amendment striking down laws protecting business and commerical interests in their products. Again, that's what the whole idea of trade secrets is about. If I can establish that you hold trade secrets of mine that you obtained from me, I can get an injunction against you publishing them. Ask the Scientologists. They have been quite successful in challenging publication of their "trade secret" "scriptures."

Further, if you enter into a contract with me which provides for confidentiality, a branch of the government -- the courts -- will uphold that contract and, again, issue an injunction against you, and award damages to me if you breach. Even in circumstances where the courts refuse to issue an injunction, citing "prior restraint" issues, that doesn't mean that in an after-the-fact proceeding the aggrieved party can't get damages.

Having said all that, I admit I haven't waded through the UCITA, although I did -- briefly -- click on the links provided by C#3 and manhattan. I'm not really prepared at the moment, manhattan, to respond to your question; I think it would take some serious legal research and thought that I haven't had time to put in to the issue. From a consumer's point of view, of course, I am appalled at what I've read here. Ralph Nader, where are you when we need you?

-Melin

[Contestant #3]

I wondered about Ralph Nader too Melin. Maybe I'll search around later to see what Ralph's into these days.

I think the last thing we need is to strip consumers of rights and power in favor of the software giants.

We should expect that the rich and powerful will almost always try to sway things into their favor in order to ensure more richness and more power...to think so is not as much paranoid or conspritorial as is it realistic.

I'm not naieve. I don't think that the "government" or "big business" always have my best interests at heart.

If this passes in even one state, I think that the software companies will set up divisions within that state and generate their sales contracts from that state as to be able to bind the consumer...we musn't allow that to happen.

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Contestant #3

[manhattan]

If this passes in even one state, I think that the software companies will set up divisions within that state and generate their sales contracts from that state as to be able to bind the consumer...we mustn't allow that to happen.

Funny you should mention this. This is likely to be among the bigger legislative issues as e-commerce grows. Where did a sale take place over the internet?

If I run down to Software-R-Us and buy (license?) a piece of software, I’ve bought it in my state. The software company can print anything they want on the box, but I’m entitled to the full protection of my state’s laws. The same thing holds true, I think, if I order the software over the Internet and have it sent to me by UPS.

But if I download that same software over the internet, where have I bought it? The software company will want to claim that I bought it in their state, not only to have a single set of consumer laws to deal with, but because the company has in all liklihood chosen a state with no sales tax, low business excise taxes, etc.

Right now this issue is not particularly big, because big software downloads are tough for most consumers and because Congress has imposed a moratorium on taxation of e-commerce. But stay tuned.


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Livin' on Tums, Vitamin E and Rogaine

[David B]

Melin said:

My experience is that unless somebody has LOTS of money, and cares LOTS about the principle at stake, a win is a win is a win (NOT as true in professional liability cases)

No argument there. I was only talking about those poeple who do care about proving themselves right. Some do, some don't.

Privilege isn't just a loophole, either. Privilege, in the defamation context, grows out of various constitutional protections or other public policy, things that are near and dear to your heart, David.

I never said it was a loophole, I said "you end up looking] like you are trying to find a loophole or technicality" [Emphasis added]. I was talking about how others may perceive it, not the actual legalities involved. Indeed, some friends of mine have a rebuttal they often use when somebody says, "Oh, that guy got off on a technicality": "The Constitution is not a technicality."

Don't put TOO much faith in the First Amendment striking down laws protecting business and commerical interests in their products. Again, that's what the whole idea of trade secrets is about.

But that's not what we're talking about here. Again, I will admit that I'm mostly going by what C3 typed in -- if he was wrong in his summary, then perhaps this doesn't apply. The point is that we're not talking about trade secret or whatever, we're talking about his claim that people "could be prohibited from commenting publicly about a product's quality or performance." Could the company prohibit this by refusing to sell to somebody who disses their product? Sure. But could the government do something about it? I don't think so.

Could the company prohibit this by refusing to sell to somebody who disses their product? Sure. But could the government do something about it? I don't think so.

I disagree. The judicial branch of the government can and will enforce a contract that has these terms in it, unless for some reason it finds the contract term to be against public policy (such as the product is unsafe).

-Melin

[manhattan]

Truth is an absolute defense against libel

Yep. Here's my "interesting historical aside" for the day. This principle is one of the cornerstones of the American free speech tradition.

It became part of the judicial landscape in 1773, when Alexander Hamilton defended John Peter Zenger against seditious libel charges leveled by the colonial government. As best I can tell, though, the phrase did not originate there. Hamilton’s big statement to the jury was "truth ought to govern the whole affair of libels."

Here’s a link to one of the accounts of that trial

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Livin' on Tums, Vitamin E and Rogaine

[David B]

Melin said:

I disagree. The judicial branch of the government can and will enforce a contract that has these terms in it, unless for some reason it finds the contract term to be against public policy (such as the product is unsafe).

I think we're saying the same thing and talking past each other here. Let me try to clear it up. Yes, I agree that the courts can and will enforce a contract that calls for somebody keeping quiet.

What I was saying (or at least trying to say ) was that the government cannot legislate something that would prevent people from saying bad things about a product.