From Thu Mar 20 10:27:38 1997
Date: Thu, 20 Mar 1997 01:39:08 +0000 ()
From: Marc Rassbach
Subject: Comment on UCC

As per the URL, I am writting both of you.
Consider these my comments.

Mr. Nimmer,

Somewhere ( on the Internet your name was mentioned as the individual accepting comments from 'the public' about the proposed changes to the UCC WRT software licenses.

I for one DO read the different shrink-wrap agreements, and find most of them to be 'in need of reform'. As a consumer, my options are limited. One option I have is the use of legal means to obtain compensation for bad software. Given a large portion of software GPF's and yet there is a lack of lawsuits shows the acceptance of the low-quality vs the cost to obtain a successful legal action.

I present you with 3 cases of why the present software agreements need reform, and how allowing the proposed terms to go into effect will only make the case worse.

Case #1: Windows NT 3.51 later licenses.

The first 3.51 license does not mention this. Later ones have a clause added in where if your NT box will be connected to a public network (such as dialing into the internet to 'surf the web') you would be in violation, unless you paid $29.95. As a consultant, I went on the knowledge of the past product license, not the present license. This was not reveled to myself until AFTER the product was opened and therefore non-returnable.

Case #2: contrived but still valid.

I do not consider Windows 95 to be a stable product. I do however, consider Word to be a stable product. If I had a way (a windows clone os like the WINE project) to not run Windows 95 BUT STILL RUN word, by the license I can not. The licenses said I may only run Word on a properly Microsoft licensed windows environment. If Microsoft where to say "If you do not register this product, it is not properly licensed." and I did not send in the warranty/registration card, I'd be running my purchased copy illegally.

Case #3: My timex datalink watch.

I owned a model 70 watch. The box said Windows, but said watch didn't work with NT. So when the 150 came out, I bought that watch. The outside of the box said NT, but the paper license said Windows 3.11, Windows 3.1, and Windows 95. This license also said that I could ONLY program the watch with the licensed OS. So If I want to use my Newton or a Mac to program the watch, I am in violation. Now what? I can't use my watch w/o the police arresting me? (1/2 a :-))

Case #4: Attempted return of software.

I bought American Yellow pages CDROM as I wanted fax #s. This software was limited to 5,000 searches. (If I had known that in advance, I would not have bought it) When I tried to return it, Computer City wouldnt take it back, opened software. No way I can preview the software either. After calling the company ($3.25 LD charges) and shipping the disk back ($7.50 Shipping) I got a check for what I paid ($47.99). Mind you, I didnt get the tax back, nor my time to get the $47.99.

Giving the software companies the actual POWER to enforce these terms scares me. Right now, the shrink-wrap agreements LACK of legal standing works in my favor. The companies would not wish to having the shrink-wrap agreements thrown out. If the UCC is re-written I fear their ability to enforce these terms which don't work and are unreasonable. The software companies fear the powers of the courts because there products DON'T work as represented. If you take away the courts, I believe software will only get worse, to the point of a takeover by foreign software, in which case this 'American success story' will fall.

P.S. I wrote this letter because

1) the commentary about this on the internet stated little public commentary has happened. Thusly when the UCC is enacted as proposed
2) This will confirm my believe that public comments is nothing more than a formality and
3) I can go about saying "I told you so."

Jaded, I remain

Marc Rassbach