IP: Stallman on the UCITA (Uniform Commercial Code in Intellectual Property, but that isn't quite the acronym)

[Dave Farber <farber () cis upenn edu>]

> Date: Thu, 03 Feb 2000 21:41:00 -0500
> To: farber () cis upenn edu
> From: David Chessler <chessler () usa net>
>
>
> The following is Richard Stallman's public letter on the UCITA followed by
> excerpted comments from Irv Mullins.  The url for Infoworld in this message
> is wrong.
> Other urls are:
>
>    http://www.4cite.org/                  [from message]
>    http://www.badsoftware.com/            [from message]
>    http://www.fsf.org/                    Free Software Foundation
>    http://www.opensource.org/             Open Source (OSI)
>    http://www.ftc.gov/be/v990010.htm      Federal Trade Commission
>    http://www.acm.org/usacm/copyright/usacm-ucc2b-1098.html    ACM
>           [Association for Computing Machinery]
>    http://www.2bguide.com/docs/cu699.html Consumers Union
>    http://www.ala.org/washoff/ucita.html  American Library Association
>
> The last site had the most recent examples.  It what follows note
> the permission to copy verbatim this copyrighted statement --
> which I is what I do here.
>
> ---------- Forwarded message ----------
> > Date: Mon, 31 Jan 2000 13:34:25 -0700 (MST)
> > From: Richard Stallman <gnu () gnu org>
> > To: info-gnu () gnu org
> > Subject: Why We Must Fight UCITA
>
> [Please redistribute this widely wherever it is appropriate.]
>
>                         Why We Must Fight UCITA
>                            by Richard Stallman
>
> UCITA is a proposed law, designed by the proprietary software
> developers, who are now asking all 50 states of the US to adopt
> it. If UCITA is adopted, it will threaten the free software
> community(1) with disaster.  To understand why, please read on.
>
> We generally believe that big companies ought to be held to a
> strict standard of liability to their customers, because they can
> afford it and because it will keep them honest.  On the other
> hand, individuals, amateurs, and good samaritans should be
> treated more favorably.
>
> UCITA does exactly the opposite.  It makes individuals, amateurs,
> and good samaritans liable, but not big companies.
>
> You see, UCITA says that by default a software developer or
> distributor is completely liable for flaws in a program; but it
> also allows a shrink-wrap license to override the default.
> Sophisticated software companies that make proprietary software
> will use shrink-wrap licenses to avoid liability entirely.  But
> amateurs, and self-employed contractors who develop software for
> others, will be often be shafted because they didn't know about
> this problem.  And we free software developers won't have any
> reliable way to avoid the problem.
>
> What could we do about this?  We could try to change our licenses
> to avoid it.  But since we don't use shrink-wrap licenses, we
> cannot override the UCITA default.  Perhaps we can prohibit
> distribution in the states that adopt UCITA.  That might solve
> the problem--for the software we release in the future.  But we
> can't do this retroactively for software we have already
> released.  Those versions are already available, people are
> already licensed to distribute them in these states--and when
> they do so, under UCITA, they would make us liable. We are
> powerless to change this situation by changing our licenses now;
> we will have to make complex legal arguments that may or may not
> work.
>
> UCITA has another indirect consequence that would hamstring free
> software development in the long term--it gives proprietary
> software developers the power to prohibit reverse engineering.
> This would make it easy for them to establish secret file formats
> and protocols, which there would be no lawful way for us to
> figure out.
>
> That could be a disastrous obstacle for development of free
> software that can serve users' practical needs, because
> communicating with users of non-free software is one of those
> needs.  Many users today feel that they must run Windows, simply
> so they can read and write files in Word format.  Microsoft's
> "Halloween documents" announced a plan to use secret formats and
> protocols as a weapon to obstruct the development of the
> GNU/Linux system(2).
>
> Precisely this kind of restriction is now being used in Norway to
> prosecute 16-year-old Jon Johansen, who figured out the format of
> DVDs to make it possible to write free software to play them on
> free operating systems.  (The Electronic Frontier Foundation is
> helping with his defense; see http://www.eff.org/ for further
> information.)
>
> Some friends of free software have argued that UCITA would
> benefit our community, by making non-free software intolerably
> restrictive, and thus driving users to us.  Realistically
> speaking,, this is unlikely, because it assumes that proprietary
> software developers will act against their own interests.  They
> may be greedy and ruthless, but they are not stupid.
>
> Proprietary software developers intend to use the additional
> power UCITA would give them to increase their profits.  Rather
> than using this power at full throttle all the time, they will
> make an effort to find the most profitable way to use it.  Those
> applications of UCITA power that make users stop buying will be
> abandoned; those that most users tolerate will become the norm.
> UCITA will not help us.
>
> UCITA does not apply only to software.  It applies to any sort of
> computer-readable information.  Even if you use only free
> software, you are likely to read articles on your computer, and
> access data bases.  UCITA will allow the publishers to impose the
> most outrageous restrictions on you.  They could change the
> license retroactively at any time, and force you to delete the
> material if you don't accept the change.  They could even
> prohibit you from describing what you see as flaws in the
> material.
>
> This is too outrageous an injustice to wish on anyone, even if it
> would indirectly benefit a good cause.  As ethical beings, we
> must not favor the infliction of hardship and injustice on others
> on the grounds that it will drive them to join our cause.  We
> must not be Machiavellian.  The point of free software is concern
> for each other.
>
> Our only smart plan, our only ethical plan, is...to defeat UCITA!
>
> If you want to help the fight against UCITA, by meeting with
> state legislators in your state, send mail to Skip Lockwood
> <dfc () dfc org>.  He can tell you how to contribute effectively.
>
> Volunteers are needed most urgently in Virginia and Maryland, but
> California and Oklahoma are coming soon.  There will probably be
> a battle in every state sooner or later.
>
> For more information about UCITA, see www.4cite.org and
> www.badsoftware.com.  InfoWorld magazine is also helping to fight
> against UCITA; see
>
> http://archive.infoworld.com/cgi-bin
>       /displayStory.pl?/features/990531ucita_home.htm
>
> Copyright 2000 Richard Stallman
> Verbatim copying, distribution and display of this entire article
> are permitted in any medium provided this notice is preserved.
>
> (1) Other people have been using the term "open source" to
> describe a similar category of software.  I use the term "free
> software" to show that the Free Software Movement still
> exists--that the Open Source Movement has not replaced or
> absorbed us.
>
> If you value your freedom as well as your convenience, I suggest
> you use the term "free software", not "open source", to describe
> your own work, so as to stand up clearly for your values.
>
> If you value accuracy, please use the term "free software", not
> "open source", to describe the work of the Free Software
> Movement.  The GNU operating system, its GNU/Linux variant, the
> many GNU software packages, and the GNU GPL, are all primarily
> the work of the Free Software Movement.  The supporters of the
> Open Source Movement have the right to promote their views, but
> they should not do so on the basis of our achievements.
>
> See http://www.gnu.org/philosophy/free-software-for-freedom.html
> for more explanation.
>
> (2) The system is often called "Linux", but properly speaking
> Linux is actually the kernel, one major component of the system
> (see http://www.gnu.org/gnu/linux-and-gnu.html).
>
> (3) Mozilla is free software; Netscape Navigator is not. The
> source for Netscape Navigator 4.0 is not available.
>
> (4) Sun's implementation of Java, and Blackdown which is a port
> of that, are not free software.  Source code is unavailable for
> some parts; even where source has been released, the licenses are
> far too restrictive.
>
> ----- End forwarded message -----
>
> The following are excerpts from the commentary of Irv Mullins,
> an excellent freeware programmer, on the Euphoria email list.
>
> > By the way, this law has some interesting points: One is
> > that you are not allowed to use your own data, if the
> > manufacturer of the software that created the data decides
> > to revoke your license to use that software. i.e. if you
> > created a database of customers using Access, and M$
> > revoked your license (with or without cause) you would be
> > prohibited from using any other database to read that
> > data.
> >
> > Another was to allow software vendors to electronically
> > disable your legally owned software via the internet. A
> > third provision allowed software vendors to disable your
> > existing legal and paid-for copies of their software when
> > you purchased an  upgrade.
> >
> > This main problem for us little guys is that the law
> > appears to make the individual programmer fully liable for
> > any damages his/her software may cause, while not only
> > absolving  big software companies from liability, but in
> > effect releasing them from having to honor any warranties
> > of any kind on their products.
> >
> > BTW: it also contained the famous M$ provision that you
> > are not allowed to tell anyone if you find a bug in the
> > software. Makes me wonder who is backing this law.