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After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

Home Articles STARK REALITIES About This Site My PGP Public Key

After Hours Reality Check Magazine A Season in Methven Our Host Send Me Mail

People who write for a living hear the same question over and over again: "Where do you get your ideas?" The folks to whom I've put that question ususally respond with one or another variation on the same answer I give to people who ask it of me: "Lots of places."

For instance, the plot of my science fiction novel, "A Season in Methven" is taken pretty directly from a role-playing game for which I was the referee some 21 years ago. That game, in turn, was based on my loathing for the Dungeons and Dragons play system and my desire to run a game where the players couldn't look up my monsters and treasures in a manual.

To act as guides for the players, I borrowed the three main characters from Robert Heinlein's classic swords-and-technology novel, "Glory Road". Two decades later, those same three characters appear in my novel--with both names and biographies altered to avoid any direct plagiarizism. (At the Octocon science fiction convention in Santa Rosa, California in 1977, Heinlein himself gave me verbal permission to "borrow" his characters--on condition I "file the serial numbers off"--and his wife, Virginia, and the late, great Theodore Sturgeon were both witnesses to the conversation.)

Before the game started, I drew a detailed topographical map of the Methven continent and developed a set of character creation rules, a combat system, a magic system and so on. I didn't create an elaborate back story or a conscientious set of cultural or political environments, nor did I build a comprehensive list of monsters.

Instead, I made all those things up as I went along, inventing alien cultures as the players encountered them, making up monsters as the die rolls and my whims dictated and crafting by the seat of my pants a political framework within which the game's could plot unfold.

With the exception of the drawings my friend Rex Brooks has created to illustrate the online version of the novel, all those details of setting and characterization--along with the new details I'm steadily adding as the narrative gathers steam--are my own, personal, private intellectual property. I own the copyrights and no one else can republish, distribute or otherwise make use of them without my permission.

If someone--say, for instance a science fiction publisher--wanted to publish, distribute and sell my story, he, she or it (hey, it's a science fiction publisher we're talking about, after all) would have to negotiate a license to do so. Unless I agreed otherwise, the story, the characters and all the intellectual property that goes with them would continue to be my property, and the publisher would have only those rights I granted him (or her or it) in the license.

Same thing goes with this column. Jack and I have a handshake deal (actually a virtual handshake deal, since it was negotiated over the telephone) that Boardwatch gets first publication rights and that I'll delay republishing my material on my website by at least 30 days. The content is and always remains my property.

"Neither a borrower nor a lender be"

If you've bought any shrink-wrapped software in, say, the past ten or fifteen years, you've probably spent some quality time with the enclosed "license agreement". It's typically printed in six point type and it's usually buried somewhere inside the package, so that you have to physically break the exterior seal before you have the opportunity to read it.

Basically, that means you have to buy and open the product before you get to read the license.

That's important, because those "license agreements" usually contain language that attempts to bind you to a host of terms and conditions of which you could not have been aware when you purchased the product. Such language commonly includes provisions such as prohibitions on transfer or sale of the product and on reverse engineering or decompilation of the code. The vendor will frequently also require that you accept these terms or return the product to "the place you purchased it"--conveniently ignoring the fact that most retailers will not accept the return of software packages that have been opened.

In other words, the vendor tries to make you treat its software as if it were the equivalent of my novel or this column--pure intellectual property--rather than what's known in legal parlance as a "good". And that ain't necessarily so.

Or, at least, in the good old USA, it ain't.

Pamela Samuelson, is a professor at the University of California at Berkeley who holds a dual appointment in the School of Information Management and Systems and the School of Law. Her principal interest lies in the field of intellectual property law, which is how she found herself sharing a panel with Jim Hammerley of Netscape and Richard Stallman, founder of the GNU Project, on Licensing and Legal Issues at O'Reilly & Associates' Open Source Developer Day on August 21, 1998. Hammerley was earnest, but dull and Stallman, as usual, was strident and polemical, but Samuelson's presentation was dryly witty and--despite being filled with careful disclaimers and lawyerly phrasing--held the audience spellbound.

Samuelson opined that most current shrink-wrap licenses are unenforceable. Her thesis was based on the legal principle that, "If it walks like a duck and talks like a duck and quacks like a duck, it must be a duck." And, in her professional opinion, mass-market software is a "good", like a comic book or an action figure--or a hard disk or a printer.

Current commercial law treats a good very differently than it does a piece of intellectual property. For one thing, you can't license a good in the same way you can an intellectual property--you can only sell it. And once it's sold, the original vendor loses a lot of control over it. Among other things, a vendor can't assert ownership of--and therefor demand the return of--a good, because it becomes the property of the buyer. Likewise, a vendor can't impose restrictions on the resale of a good--once you've bought a car or a television or a videotape, you're perfectly free to re-sell it for whatever the market will bear.

And you can't disclaim all warranties on a good, either, whether they're express or implied. That means that virtually all mass-market software is subject to the "implied warranty of merchantability", which is the principle that a good actually must be capable of performing the job it is sold to do (i.e.--a word processor must process words, a spreadsheet must calculate cells and so on). More importantly, it means that, regardless of any disclaimers in the "license agreement", mass-market software products must make good on any vendor claims about their function--and that includes claims made on spec sheets, on websites and on the box in which the product comes.

Most importantly, it means that--again, regardless of disclaimers to the contrary--a vendor will be liable for any damage its product causes, assuming that the vendor knew about a defect in the product that was likely to cause that kind of damage and failed either to warn the buyer of the defect or to fix the defect once it became known.

As an example, take the hypothetical case of a mass-market software product with known bug that will result in a system crash and catastrophic data loss under normal operating conditions (which is to say, when operator error is not a factor). If courts treat that product as a good and the buyer can show that the vendor knew about the bug at the time of sale and can also show both that it failed to warn the buyer and that it failed to correct the bug, the vendor could be held liable for any actual damages the buyer suffered and could very easily find itself on the wrong end of a class action suit.

"Get thee to a nunnery!"

As you might imagine, Samuelson's opinion is anathema to most software vendors. Unfortunately, they've found a tool called Article 2B of the Uniform Commercial Code that may well turn the tables so far in their favor that every word of those Draconian shrink-wrap licenses will become fully enforceable--leaving their customers without any legal recourse, no matter how buggy and dangerous their products are allowed to become.

The Uniform Commercial Code covers all transactions of a commercial nature within the borders of the USA. Buyers and sellers, lessors and lessees, licensors and licensees are all subject to state regulations promulgated by the UCC.

The UCC is a joint product of the National Conference of Commissioners on Uniform State Laws, a body of more than 300 lawyers appointed by the legislatures of the 50 United States, and those of the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, that generates model language on a host of issues for later adoption by the state legislatures and of the American Law Institute, a lawyers' organization formed in 1923 with the goal of improving the law and its administration.

The idea behind the UCC is to ensure that, as much as possible, the laws in any one state treat commercial law issues the same way as do the laws in other states. It's been around since 1978 (or, rather, the NCCUSL and the ALI joint copyright claim dates from then) and several of its articles have been amended since then or are in the process of being amended now.

Unsurprisingly, the UCC amendment process is a long, drawn-out affair. It proceeds through a number of drafts overseen by a Reporter who is responsible for collecting comments from interested parties. Each draft is incremental, as the lawyers involved in the two parent organizations progressively refine its language and address issues raised in the comments collected by the Reporter. Eventually, a given amendment reaches a point where it has sufficient support to be submitted to a vote of the members of the NCCUSL and ALI. If it passes both votes, it becomes part of the UCC and NCCUSL and ALI then turn their energies to lobbying state legislatures to adopt it as part of their individual commercial codes.

They generally do.

Article 2 of the UCC deals with sales. It's currently going through the amendment process. So is Article 2A, which concerns itself with leases. And a brand-new amendment, Article 2B, which addresses the issue of licensing, is, as of this writing, well into its 17th draft.

There's a reason for that. Article 2B is a monster--well over 200 pages of dense legalese that addresses in minute detail the myriad issues surrounding the granting of commercial licenses. Specifically, software licenses.

Although Ralph Nader has submitted formal comments on Article 2B, as has Consumers Union, by far the bulk of the pro-consumer commentary has come from Todd Paglia, Staff Attorney of the Consumer Project on Technology and from Cem Kaner, a computer programmer-turned-lawyer, who maintains Bad Software: A Consumer Protection Guide.

They're voices crying in the wilderness.

Most of the lobbying--and, thus, the major beneficiaries of the language in the latest draft of Article 2B--has been done by the Software Publishers Association and by individual software vendors. As it stands, the August, 1998 draft language would make shrink-wrap licenses completely enforceable--legitimizing the vendors' position that buyers of mass-market software can be forced to abide by a "contract" whose provisions they have not seen in advance of their purchase and over whose terms they have no power to negotiate.

Among other things, Article 2B would allow software vendors to legally disclaim all warranties, despite a 1975 piece of Federal legislation called the Magnuson-Moss Act that currently forbids such blanket disclaimers. It would prevent the application of the "first sale" principle to software sales--and that would prevent buyers from selling or giving away software they purchased. (That would mean, for instance, that you couldn't sell--or even give away--an old 486 computer with a copy of MSDOS 6.22 and Windows 3.11 on it, even if you included with it all the original disks, manuals and the shrink-wrap licenses. Instead, you'd have to wipe the hard drive clean and delete even the boot files before you sold it!)

Worse still, under Article 2B, buyers is held responsible for taking precautions to safeguard their data--such as backing it up before installing a product--while vendors are not required to exercise any particular care or discretion in the development or manufacture of their products. Or, to put it another way, if you failed to back up your data prior to installing a new piece of software, you can't recover any damages from the vendor, regardless of how buggy and dangerous its product might be.

In my view, Article 2B is very poor public policy. I favor free markets, but I don't see that shrink-wrap licenses qualify. In truly free-market transactions, both parties have the power to negotiate terms. When a consumer is convinced to buy a product by claims made by a vendor about what that product will do, the customer should have the right to demand that the product in question will do what the vendor claims it will do.

Under Article 2B, a vendor can claim anything it darn well pleases about its product, can advertise those claims on TV and radio, can print them in magazines and on billboards, on spec sheets and even on the product's box, but, if the shrink-wrap license disclaims "all warranties, express or implied", the vendors's customers are SOL, regardless of how inaccurate those claims may be.

How's that for a level playing field?

"I know a hawk from a handsaw."

Now, lest you think that software product liability is a false issue whose only purpose is to make evil lawyers rich at the expense of warm and fuzzy--but entirely helpless--software vendors, consider this: in September, 1997, the Windows NT-based network servers aboard the Aegis missile cruiser USS Yorktown suffered a catastrophic system crash as the consequence of a divide by zero error that caused a buffer overflow in a database application. As a result, the Yorktown's propulsion system shut down and the ship was left dead in the water for almost three hours.

What if that problem had occurred in combat? What if it happened to a stock brokerage in the middle of a 350-point slide in the Dow? What if it happened to a police dispatch system in the middle of a natural disaster?

What if it happened to you?

Article 2B probably won't be ready for a final vote by the NCCUSL and ALI until sometime next Spring. That means there's still time to make your voice heard. You can do that by reading up on the current draft at and then submitting your own comments to Raymond T. Nimmer, the ALI's Reporter for Article 2B.

At the very least, put links to these pages for your users to learn about the issues raised by Article 2B. It will make them smarter, better-informed consumers. It'll give them at least a little advance warning about the way the software industry is trying to change the rules on them.

And, who knows? It might even give them ideas.

(Copyright© 1998 by Thom Stark--all rights reserved)