UCITA and Conspicuousness

Currently, many software publishers allow consumers to view the license agreements governing their programs only after a purchase has been made.

UCITA sanctions this practice of post-payment disclosure of terms. Preventing the consumer from reading the terms of software license agreements before the sale has been made can severely reduce the consumer's ability to make an informed purchase.

  1. Software license agreements contain terms that are extremely important to the consumer. For example, the terms of a software license agreement may determine how the consumer uses the software, what (if any) warranties apply, what law governs the transaction, whether the consumer can freely criticize the software and where and how a consumer can sue in the event of a contractual breach. Givern the significance of such terms, it makes little sense to deny consumers the ability to consider such contractual terms when deciding whether or not to purchase a software product.

  2. Post-payment disclosure of contractual terms effectively prevents the consumer from comparing the contractual terms of similar software programs. Before purchasing a software program, the consumer should be able to use comparison shopping to choose the program with the most agreeable terms. For example, a consumer may be more inclined to purchase a word-processing program that has more comprehensive warranty coverage than other word-processing programs.

  3. By allowing software publishers to withhold contractual terms from consumers until after purchase, UCITA ensures that contractual terms are not subject to consumer demand. Under UCITA, software publishers need not worry that consumers will purchase competing programs governed by more consumer-friendly contracts.

Questions, comments and suggestions to Vergil Bushnell vbushnell@cptech.org

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