May 2000

Click on the Dotted Line

Here's a little secret: Although you may think you own the software that you have paid good money for, you don't.

By Herb Brody

Under the provisions of those fine-print contracts that you probably toss in the trash or banish from your screen with a heedless click on an innocuous looking "Agree" button, your tender of cash for Doom or Microsoft Word gets you only a license-under terms dictated by the software's maker.

Although such "shrinkwrap" and "click-through" contracts don't currently carry much weight, a law under consideration by state governments could give these ephemeral agreements legal heft-and give software companies the power to enforce controversial new provisions.

The law in question, the Uniform Computer Information Transactions Act (UCITA), is an extension of the Universal Commercial Code-the framework of rules that underlies state laws governing buying of goods and services. According to Keith Kupferschmid, a lawyer with the Software and Information Industry Association, UCITA would "make sure that shrinkwrap and click-through licenses are uniform and enforceable in all 50 states-and that's a consumer benefit."

But critics say UCITA goes too far by giving statutory weight to broad disclaimers designed to shield software makers from virtually any responsibility for faulty products. Worse, UCITA-sanctioned contracts could forbid licensees from publicly criticizing software-a provision that might stop savvy users from reporting product bugs and security holes over the Web. The new law would "make these crazy terms enforceable," says Skip Lockwood, director of 4CITE, a Washington-based anti-UCITA coalition.

Industry proponents admit the law isn't perfect, but argue that the courts can fix objectionable consequences. But with Virginia already signed onto UCITA as of March, and Maryland ready to vote this spring, policy analyst Dori Kornfeld of the Association for Computing Machinery says opponents aren't ready to click "Agree" just yet. "If there are problems," she says, "the time to fix them is now-before the legislation is passed."