March 31, 1997
1 Microsoft Way
Redmond, WA 98052
Re: Shrinkwrap Licenses and Uniform Commercial Code Article
Dear Mr. Gates:
I am writing to express my concern over the draft of Uniform Commercial
Code Article 2B that Microsoft Corporation is supporting. The
most vocal and strident support for this draft legislation comes
from the Software Publishers Association and the Business Software
Alliance, both of which include Microsoft as a member. As you
know, proposed Article 2B will be of great consequence to the
software industry and its customers by providing a uniform state
law to control licenses of software and other information products.
The draft law is unbalanced in its current form because on many
issues it favors software and other industry players at the expense
of software purchasers. As the industry leader I hope that your
company, as well as the trade associations to which Microsoft
belongs, will actively support modifications to the draft law
in order to create a more balanced and fair approach.
Among Article 2B's most problematic sections is the validation
of shrinkwrap licenses. In the past, software companies claimed
that purchasers became bound to these licenses upon breaking the
shrinkwrap container. Article 2B slightly alters this formality.
When a purchaser gives a cashier payment and receives a software
product, the transaction is not complete under Article 2B. During
installation, the software program will request that the purchaser
"consent" to the license by clicking with a mouse on
an "I Agree" icon. This is the first opportunity for
the purchaser to review the terms of the license because they
are hidden within the software package. Shrinkwrap licenses are
of questionable legality because courts have been divided on whether
this kind of mechanism should be wholly enforceable.
There are also several specific problems with Article 2B's validation
of shrinkwrap licenses. The license is a take it or leave it proposition,
and to leave it, affirmative action is required by the purchaser
who must, after buying the product and attempting to install it,
pack up the software, return to the store, and obtain a refund.
The burden is entirely on the purchaser. And this assumes that
the purchaser will read and understand the license, which is a
highly unlikely occurrence because they are often lengthy and
difficult to understand. After investing significant time and
money into this process, most purchasers click on "I Agree"
as many times as is necessary to install the program. The effect
is to have purchasers "consent" to license terms that
are dictated by the industry and hidden until after the purchaser
pays and leaves the store.
The form of the shrinkwrap license is objectionable because it
operates against informed decisionmaking and is of questionable
legality, but Article 2B goes even further by allowing the content
of the licenses to be completely one-sided. Here are a few of
the terms that UCC 2B validates:
Article 2B in its current form provides almost no protection to
customers, especially to consumers and small businesses. It shields
the worst companies from responsibility for their worst products.
It must be revised with principles of fundamental fairness in
mind. I look forward to hearing from you and hope that as the
industry leader, you and the trade associations to which Microsoft
belongs will support much needed revisions to Article 2B.
P.O. Box 19312
Washington, DC 20036