Consumer s Bill of Rights Cem Kaner s Blog http blackbox cs fit edu blog kaner archives 000124 html 1 Let the customer see the contract before the sale It should be easy for customers of mass market software products and computer information contracts to compare the contract terms for a product or for competing products before they download use or pay for a product NOTE This is not a radical principle American buyers of all types of consumer products that cost more than 15 are entitled to see the contract at a minimum the warr anties in the contract before the sale 2 Disclose known defects The software company or service provider must disclose the defects that it knows about to potential customers in a way that is likely to be understood by a typical member of the market for that product or service 3 The product or information service must live up to the manufacturer s and seller s claims part 1 A statement by the vendor manufacturer or seller about the product that is intended to describe the product to potential customers is a warranty a promise that the product will work as described Warranties by sellers are defined in UCC Article 2 Section 313 Manufacturer liability is clarified manufacturers are liable for claims they make in ads and in the manual in a set of clarifying amendments to Article 2 that have now been approved by the Permanent Editorial Board for the UCC which will be probably introduced in state legislatures starting early in 2004 3 The product or information service must live up to the manufacturer s and seller s claims part 2 A In addition it is a deceptive trade practice in most states perhaps all to make claims about the product that are incorrect and make the product more attractive For example under the Uniform Deceptive Trade Practices Act Section 2 5 it is unlawfully deceptive to represent that goods or services have sponsorship approval characteristics ingredients uses benefits or quantities that they do not have UCITA was designed to pull software out of the scope of laws like this which it did by defining software transactions as neither goods nor services but licenses We should get rid of this cleverly created ambiguity 4 User has right to see and approve all transfers of information from her computer part 1 Before an application transmits any data from the user s computer the user should have the ability to see what s being sent If the message is encrypted the user should be shown an unencrypted version On seeing the message the user should be able to refuse to send it 4 User has right to see and approve all transfers of information from her computer part 2 This may cause the application to cancel a transaction such as a sale that depends on transmission of a valid credit card number but transmission of data from the user s machine without the user s knowledge or in spite of the user s refusal should be prosecutable as computer tampering 5 A software vendor may not block customer from accessing his own data without court approval Comments 6 A software vendor may not prematurely terminate a license without court approval part 1 The issue of vendor self help early termination of a software contract without a supporting court order was debated at great length through the UCITA process To turn off a customer s access to software that runs on the customer s machine the vendor should get an injunction a court order 6 A software vendor may not prematurely terminate a license without court approval part 2 However perhaps a vendor should be able to deny a customer access to software running on the vendor s machine without getting an injunction though the unfairlyterminated customer should be allowed to get a court order to restore its access 7 Mass market customers may criticize products publish benchmark study results and make fair use of a product part 1 Some software licenses bar the customer from publishing criticisms of the product or publishing comparisons of this product with others or using screenshots or product graphics to satirize or disparage the product or the company Under the Copyright Act you are allowed to reproduce part of a copyrighted work in order to criticize it comment on it teach from it and so on 7 Mass market customers may criticize products publish benchmark study results and make fair use of a product part 2 Software publishers shouldn t be able to use license contracts to bar their mass market customers from the type of free speech that the Federal laws including the Copyright Act have consistently protected 8 The user may reverse engineer the software part 1 Software licenses routinely ban reverse engineering but American courts routinely say that reverse engineering is fair use permissible under the Copyright Act Recently California courts have started enforcing no reverse engineering bans in software licenses This is a big problem Software publishers claim that reverse engineering is a way to steal their work 8 The user may reverse engineer the software part 2 There are many legitimate important uses of reverse engineering such as exposing security holes in the software exposing and fixing bugs that the manufacturer might not fix because it is unwilling unable or no longer in business exposing copyright violations or fraudulent claims by the manufacturer or achieving interoperability making the product work with another product or device These benefit or protect the customer but do not help anyone unfairly compete with the manufacturer 9 Mass market software should be transferrable Under the First Sale Doctrine someone who buys a copyrighted product like a book can lend it sell it or give it away without having to get permission of the original publisher or author Similarly if you buy a car you don t have to get the car manufacturer s permission to lend sell or donate your car UCITA Section 503 2 allows mass market software publishers to take away their customers rights to transfer software that they ve paid for It should not 10 When software is embedded in a product the law governing the product should govern the software part 1 Think of the software that controls the fuel injectors in a car Should the car manufacturer be allowed to license this software instead of supplying it under the basic contract for the sale of the car Under extended pressure from the software industry the Article 2 amendments specify that software information is not goods and so is not within the scope of Article 2 even though courts have been