for the Consumer Project on Technology. "Under UCITA, the software publisher is granting you, the consumer, a license to use the product. Its not a sale; its a license. By defining the sale as a license, the software publisher can include a number of restrictive terms on how you use the product, [whether] you can criticize the product or if you can transfer the product and a number of other restrictions."

Under UCITA, consumers are asked to enter into a contract they can read only after they have paid for the software. Often the license can only be read during the installation phase of the software. These contracts are often used to ask consumers to "voluntarily" limit their rights, and consumers rarely read them.

"The terms governing the end-user license agreement are very significant to the consumer," Bushnell said. "They might say something like, We the software publishers disclaim all implied warranties. It might say something like, If youre going to sue us, you have to submit to mandatory arbitration in the state of Washington even though I may be a consumer living in Maryland."

Of course, the potential abuses are limited only by the imagination.

"Why couldnt they say, Anything you write with this word-processing program also belongs to Microsoft?" asked Dreyfuss. "I dont think they would put that into a contract, but they could put in things that say, You cant look at the software. You cant look at the code. You cant try to reverse engineer it. You cant try to imitate it."

Reverse engineering is a standard practice in the world of software, in which engineers effectively disassemble a competitors product so they can figure out how to make their own software compatible. This is what allows Corel WordPerfect users to read Microsoft Word documents. Licensing restrictions that would limit consumers rights to do things such as reverse-engineer a product have been around forever. But until UCITA, theyve always been found unenforceable. The license agreement for the McAfee anti-virus utility even has a clause that says you cant review the software or publicize the results of benchmark performance tests without the express permission of the publishers -a clear violation of basic First Amendment rights under current law, but possibly enforceable under UCITA. Bushnell noted that McAfee had never enforced this clause, but said its presence was disturbing.

McCabe claims that competition between the software publishers will prevent them from inserting terms that are too onerous for the consumer. "Competition has its own way of mitigating what people do in light of contracts that they try to form," he said.

Consumer advocates dont buy it. "A proponent of UCITA might say the consumer can decide what piece of software he wants to buy based on the terms, but UCITA effectively prevents the consumer from doing any kind of comparison shopping because the terms are hidden within the box and only revealed to the consumer after the sales been consummated," Bushnell said.

And although there are many players in the software field, consumers may often find themselves in a situation where only one vendor has the product they need. And the UCITA model puts the burden on consumers to take the product back to get a refund if they dont like the terms of the license.


UCITA also contains provisions that would allow software companies to engage in "self help" if they feel that the consumer has violated the terms of the license. "[Self help] may allow the publisher, if they feel the consumer had breached the contract, to send a ping or an e-mail that could disable the software," Bushnell said.

"Once upon a time, the courts didnt like the idea of self-help - that was an Old West shoot-out. What you were

Tod Newcombe  |  Features Editor