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Newsletter Section 4

Across the Pond

It's Your Problem (Not Theirs)

(James Gleick)

I seem to remember that when I subscribed to, oh, The New Yorker, I sent in some money and eventually the magazine started arriving in my mailbox. Not so simple in the digital era. The other day I used my computer to subscribe to Slate, an on-line magazine owned by Microsoft, and after I gave up my name, E-mail address, postal address, credit-card number, and choice of gift (I declined the free umbrella), the screen presented me with the first few lines of a 2,000-word contract. Below this was a button marked “I Agree”. There was also a button marked “Cancel”. I looked in vain for a button marked “Let's Negotiate – My Lawyer Will Be in Touch with Your Lawyer”.

I realize now that before you read any further we should agree on some ground rules.

First of all, by reading Fast Forward you confirm your acceptance of, and agree to be bound by, and promise never to call your lawyer to make light remarks about, this Agreement.

Further, you're not buying a car or a toaster here. This department “makes no express or implied representations or warranties to you regarding the usability, condition, or operation thereof. We do not warrant that access or use will be uninterrupted or error-free or that we will meet any particular criteria of performance or quality”. No matter how bad the product is, it's your problem, not ours.

And after all this, if you think you've found a loophole and actually wish to sue, start by calling your travel agent, because you consent to the exclusive jurisdiction and venue of courts in King County, Wash. Oh, no, wait – that's Microsoft.

“Yes, it's absurd”, says Michael Kinsley, Slate's editor. But no more absurd, he adds, than agreements at other sites. (Sure enough, The New York Times has a long contract for its own on-line subscribers). Internet magazines are more complicated, interactive, and bug-prone than their print ancestors and thus require, in a litigious world, more complicated legal armor. You aren't really expected to understand it. “The entire software industry, for that matter,

depends on its customers not really reading these things before clicking 'I accept,'” Kinsley says.

The software industry also relies on a clever legal twist: the notion that consumers are entering into ongoing licensing agreements with the manufacturers. You may think, as you walk out of a store, with a package under your arm, that you have bought that software. The industry claims that you have merely licensed certain limited rights to use it. It says so right there in the agreement you will find under the shrinkwrap and toss away unread.

As a licensee, you commit yourself to a set of continuing duties. In the case of Slate, for example, you agree to supervise any usage by minors and to notify Microsoft “promptly” – even though you've already paid – if you change your billing address, lose your credit card, or “become aware of a potential breach of security”. Kinsley says he persuaded the lawyers to drop a clause that would have required all his readers to maintain their computer equipment in working order.

Are all these shrinkwrap and “lickwrap” agreements really enforceable? After all, the manufacturers know perfectly well that customers have neither the time nor the expertise to read them, and often the agreements are hidden in boxes until well after the customers have paid up. No one knows for sure. In real life, manufacturers almost never try to enforce the sillier terms, and most of the damages people suffer from defective software tend to be in the nature of lost time – hours spent cursing the computer, or waiting on hold for technical support, – and it's hard to sue over that.

Steve Tapia, a Microsoft corporate attorney, says it just wouldn't be fair to hold software to the same standards as, say, a car. That's lucky for him, because car makers have found it very expensive to sell cars with defects – especially defects they knew about. They can't just disclaim any obligation to guarantee their products. Software is different, Tapia says, “because personal computer software may be used for a myriad of different purposes on an infinite amount of hardware combinations.”

In the early days of personal computers, users were mostly technical types willing to wrestle with flawed software. They forgave some of the bugs, in versions 1.0, anyway. Now that computers are a mass-market product, they reach more naive customers who might actually expect their software to work. That must be why dozens of companies feel compelled to make users agree that they're on their own if they use the products “in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or aircraft communication systems, air traffic control, direct life support machines, or weapons systems, in

which failure of the software could lead to death, personal injury, or severe physical or environmental damage”.

Some legal departments have been getting more creative lately. Customers who download Network Associates' anti-virus software “agree” – “click” – to clauses designed to give the company control of press coverage: “The customer shall not disclose the results of any benchmark test to any third party without Network Associates' prior written approval”, and “the customer will not publish reviews of the product without prior consent.”.

Meanwhile, the agreement that comes with Microsoft Agent, software that lets people create cute interactive animated figures, holds that you may not use the characters “to disparage Microsoft, its products or services”. Will the next version of Microsoft's operating system have a clause like that? I'll have to find a typewriter?

Perhaps some of these contract terms are striding defiantly past the limits of existing law – but the law is likely to change shortly, in all 50 states. A major revision is under way in the foundation of American commercial law, the Uniform Commercial Code. The drafters, a committee of lawyers established for the purpose, have created a new statute, Article 2B, specifically to cover software and other information products. To the horror of some consumer groups, the current draft: ( http://www.law.uh.
– expected to go to the state legislatures in January – ratifies the most aggressive provisions of today's software licenses. It would set into law the idea that software customers aren't buying “goods”, but merely licensing certain rights. It makes the licences binding even when customers have not read them, when the customers casually clicked an on-line button, and when the customers could not have seen the agreements until after buying the products.

The draft legitimizes confidentiality and nondisclosure clauses like Network Associates, forbidding users to publish reviews of a product. And it would explicitly allow manufacturers to disclaim warranties; it even suggests language: “this [information] [computer program] is being provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user”.

“It's the drafting committee's view that bugs are inevitable in software, and that makes software different,” says Cem Kaner, <http://www.badsoftware.com/ uccindex.htm> , a lawyer and software consultant opposing these provisions. He argues that Article 2B in its present form will be a disaster not only for consumers but also for the more honorable software companies; it will reward companies that try to grab market share by rushing to market with buggy software.

“If there are no refund rights, no lawsuit rights, no legal disincentives, then companies that ship prematurely enjoy an unfair advantage,” Kaner says. “In the process of protecting the worst companies from the consequences of their worst products, we pressure better companies to do a worse job.”

Defeat New Copyright Legislation

(Simson L. Garfinkel)

Two bills that are up for a vote in the House of Representatives could seriously

jeopardize the right of Americans to read in the next century. The backers of these bills say that the legislation is necessary to protect the interests of creative individuals and publishers in the digital age. But the legislation goes further by allow publishers to repeal the “fair use” provisions of today's copyright law and creating a whole new category of intellectual property.

The first bill, strongly backed by the Clinton Administration, is the “WIPO Copyright Treaties Implementation Act,” (H. R. 2281). This bill is designed to implement sections of the World Intellectual Property Organization treaty that was adopted back in December 1996. The bill creates a new kind of crime in US law, the crime of “circumvention”. It's a kind of crime that one would expect in George Orwell's 1984, rather than in the America of the next century.

H.R. 2281 is being supported by big publishing interests including Time Warner, Viacom, the Motion Picture Association of America, and Microsoft. These organizations are terrified by the way computers and digital networks make it easy to copy books, songs, videos and computer programs. For years these groups have tried to stop illegal copying with copy-protection systems. H.R. 2281 would make it a crime to subvert these systems for any purpose whatsoever.

The problem with this legislation, says Adam Eisgrau, Legislative Counsel of the American Library Association's Washington Office, is that many publishers are likely to use copy-protection systems to restrict activities that are otherwise lawful.

For example, many web sites on the Internet today as you to register with your name and e-mail address before you can view the information that they contain. A substantial number of people bristle at this notion, and they have figured out ways to circumvent the registration process. Under the legislation, these people could be sued and awarded $200 to $2,500 in statutory damages for each web page that they viewed.

And it's not just consumer groups that are upset about the legislation. As it currently exists, the legislation would make it a felony for engineers to open up competing products and see how they work – “something that is essential for achieving interoperability in the industry,” says Lowell Sachs, the government affairs representative of Sun Microsystems. “So far, the House has failed to focus upon the very real threat that its actions could pose to competition and innovation in the United States”.

The criminal provisions of H.R. 2281 apply even if the offender is legally entitled to the information that is under copyright management control. For example, the

Supreme Court has ruled that individuals have a right to record movies off the air and view them at a later time. Nevertheless, the film industry doesn't want us to make our own tapes – they want us to buy pre-recorded tapes. In the future, the film industry might create a new copyright protection system that prevents home taping off the Internet unless a person pays an additional fee. Under the proposed legislation, a person who circumvented this new copy-protection system and made their own legal home copy would nevertheless be guilty of circumvention, and potentially subject to a fine of $500,000 and 5 years imprisonment for the first offense.

The authors of the bill “are very clever,” says Adam Eisgrau. “They don't repeal the legal basis of fair use, which would create a huge political outcry. Instead, the legislation creates a new law which makes fair use impossible to exercise, unless the appropriate price is paid”. And that's not Fair Use at all.

The second bill that should give lawmakers pause is H.R. 2652, the “Collections of Information Antipiracy Act”. This law, if passed, would give legal protection to the contents of databases over and above what is provided by today's copyright law.

The database law finds its genesis in a 1991 Supreme Court decision, Feist Publications, Inc. v. Rural Telephone Service Co., in which the Court ruled that the factual information in a telephone white pages – a large database of names, addresses and phone numbers – cannot be copyrighted. This decision is one of the key factors responsible for the proliferation of “white pages” services on the Internet like Switchboard.COM.

H.R. 2652 would basically overturn the Feist decision, making it a crime to extract date from a “collection of information” and use it in a way that harms the real or potential economic interest of the collection's owner. One of the fundamental problems with this bill, says the EFF, is that there's no limit to the kind of information that can receive protection once it is put into a databank. In particular, government information and information that's already in the public domain could be dropped into a computerized databank and then receive new, copyright-like protections. And the Act doesn't have any exemptions for “fair use”.

So how could all of this impact on our right to read? Just ask Richard Stallman, founder of the Free Software Foundation. In his story The Right To Read, Stallman argues convincingly that new restrictions on information will ultimately force people to pay for every book and article that they read, whether they are at home, at work, or at school.

Stallman's story is a science fiction parable in which one college student risks imprisonment by lending his computer to his girlfriend and telling her his password – in effect, giving her access to books that he has licensed for himself. “Dan knew she came from a middle-class family and could hardly afford the tuition, let alone her reading fees. Reading his books might be the only way she could graduate”, Stallman writes. You can find the entire story at http://www.gnu.org/

Indeed, if you want find out more about these issues, there's no better place to turn than the Web. A group opposed to the legislation called the Digital Future Coalition has put together a website at http://www.dfc.org/ explaining the problems. Meanwhile, a group of publishers have banded together and created their own competing group, the Creative Incentive Coalition. You can find its website at http://www.cic.org/ . Finally, you can download the full text of these bills from the Library of Congress's Thomas system at http://thomas.loc.gov/ .

But hurry, while you still have a right to read.

VA Research grants Linus Torvalds Excellence in Open Source Software Award

VA Research has granted its Excellence in Open Source Software Award to Linus Torvalds, father of the Linux operating system and one of the most important leaders in information technology. The award is co-sponsored by O'Reilly & Associates and Red Hat Software.

The VA Research Excellence in Open Source Software Award honors exceptional individuals within the free software community. Linus led this community to create Linux, a freely distributable multi-user, multi-tasking UNIX-like operating system. Linux is now used in a range of applications from mission critical servers to desktop workstations.

VA Research is the leading Linux systems manufacturer, and experienced tremendous growth in 1997. “Linux is emerging as the most viable alternative to replace aging Suns and Digital computers in Fortune 100 companies and other large institutions. The success of Linux and of VA Research rests squarely on the contributions of Open Source software programmers like Torvalds” said Sam Ockman, Director of Software for VA Research.

“Strong software development and faster processors have allowed VA Research to compete with the big UNIX companies” concluded VA Research Sales Manager Douglas Bone, “and we'd like to give something back to the Linux programmers and developers who helped make it possible”.

This initial award consists of a VArStation YMP model 4642d, a Linux workstation on par with the Sun Ultra 2 Creator (3D) Model 2300 and the Digital AlphaServer 4000 5/400, or a 6 CPU RISC system (6000 J40) from IBM. The YMP's operating system is Red Hat Linux 5.0, Infoworld's Operating System of the Year for the last two years. It will be accompanied by a full line of books on Linux and UNIX from O'Reilly & Associates, the premier computer book publisher.

The Silicon Valley Linux Users Group hosted the presentation to Linus Torvalds. “"As my clients have outgrown their Sun Servers, I've always recommended that they go with an open solution from VA Research,” said Silicon Valley Linux Users Group Vice President and Internet Security Consultant Chris J. Dibona.

The award was presented to Linus at the March meeting of the Users Group. Linus spoke on the future of Linux and answered questions from the audience.

Second Annual Perl Conference

O'Reilly is presenting the second annual Perl Conference from 17-20 August 1998 at The Fairmont Hotel in San Jose, California. For the full program and registration information, go to:


Perl Conference 2.0 features two days of intensive tutorial sessions followed by a two-day conference led by key Perl developers.

New at this year's Perl Conference:
.     “Guru-Is-In” sessions: Informal Q&A with the leading lights of the Perl community.
.     Perl Developer's Workshop: An intensive, invitation-only, all-day session on the organization and future direction of Perl, led by Larry Wall. If you're interested, submit a one-page position paper by 1 July.
.     Perl and Apache: A full track devoted to creating a high-performance Web site using Perl with the Apache Web server.

Speakers at the 30+ sessions include:

.     Larry Wall, creator of Perl, on “The State of the Onion”
.     Tom Paquin of Netscape's mozilla.org on “Free Software Goes Mainstream”
.     Dick Hardt, creator of Perl for Win32
.     Tom Christiansen, managing editor of www.perl.com and coauthor of several O'Reilly Perl books.
.     Tim Bray, co-editor of the XML specification.
.     Jon Orwant, editor and publisher of The Perl Journal.
.     Doug MacEachern, author of mod_perl.
.     Randal Schwartz, co-author of Learning Perl and Programming Perl.

Leading Perl and XML Developers collaborating to make Perl the top Scripting Language for XML

Leading Perl and XML (Extensible Markup Language) developers met recently at O'Reilly & Associates to plan a way for Perl, the popular Web programming language, and XML, the hottest Web mark-up technology, to work together. Attending the Perl/XML Summit were:

.     Larry Wall, creator of Perl, and senior developer, O'Reilly & Associates.
.     Tim Bray, co-editor of the XML 1.0 specification and independent consultant.
.     Dick Hardt, developer of Perl for Win 32, and Chief Technology Officer, ActiveState Tool Corporation.
.     Tim O'Reilly, President and CEO, O'Reilly & Associates.
.     Dale Dougherty, CEO, Songline Studios.
.     Gina Blaber, Director, Software Products Group, O'Reilly & Associates.

One major goal resulted from the summit: to make Perl the scripting language of choice for processing XML. As Perl support for XML increases, it is expected, in turn, to make XML more accessible. “XML is currently perceived as powerful and important, but not particularly easy,” explains Larry Wall. “This makes XML and Perl naturally complementary, since Perl is a language that makes easy things easy to do, and hard things possible.”

One of the summit group's first priorities is to get Perl working with Unicode (ISO 1046). Unicode enables code to be easily translated into other languages; XML requires Unicode. Larry Wall will lead the team working on this task.

“In the design of XML, we were continuously mindful of the need to enable the fast, efficient creation of scripts and programs for processing XML,” says Tim Bray. “Perl is the Web's pre-eminent text processing tool, and it's really great that the leaders of the Perl community are going to meet us halfway on this.”

“For many of us in the XML effort, the most important goal is to increase the proportion of the world's documents stored in open, non-proprietary formats,” Bray continues. “Building slick XML processing into Perl makes the use of such formats more rewarding and helps frustrate the efforts of those who would imprison human knowledge behind the barbed-wire of proprietary file formats”.

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