Software buyers face growing risk Warranty: Manufacturers want to eliminate their liability.

May 25, 1998|By Dan Keating | Dan Keating,KNIGHT RIDDER/TRIBUNE

"NOTICE: Reading this column confirms your acceptance of the following terms:

"You may not criticize or mock the contents of this article, or use the information or opinions herein in a manner contradictory to the best interest of this author, the publisher or their heirs and assigns, including the author's pet bunny, Muffin.

"No warranty is offered or implied as to the veracity of the contents, the suitability for any task or entertainment value.

"Any legal action against the author arising from the contents herein requires the prior written approval of the author's mother and can be filed only on a cloudy afternoon in Bahrain."

While all that sounds silly, anyone who has ever installed software recognizes the style: A contract full of ludicrously one-sided assertions is flashed in front of your face, and you must click your acceptance before proceeding.

Under a little-known proposal called Article 2B, you could be seeing a lot more of these - and they'd have a lot more impact on your rights as a consumer.

If you bother to read the things, you might be shocked to see the kinds of statements the software manufacturers are making.

For instance, are you excited about the new Outlook 98 from Microsoft? You might be less excited if you read the license agreement, six pages of small printed text.

Starting at the bottom of Page 4, after a long passage in French, you come across this beauty:

"No warranty. The software product and any related documentation is provided 'as is' without warranty or condition of any kind, either express or implied, including, without limitation, the implied warranties and conditions of merchantability, fitness for a particular purpose, or noninfringement. The entire risk arising out of use or performance of the software product remains with you."

That doesn't sound like a contract or license - it sounds like a legal mugging. And as a software user, you get those nutty licenses thrown in your face after you've bought a product, brought it home and begun installing it. Is clicking OK to that deal really a consensual, fair agreement?

Buggy, crash-prone programs are sold all the time. One reader recently complained about backup software that had one little flaw - it did not back up the important files on his computer.

He discovered after the fact that the software maker had put a fix on its World Wide Web page. But had it contacted users who dutifully filled out the little postcards to register their products? No.

My company recently purchased six copies of a software product that sells for $1,250. I recommended it for several reasons, but an important one was the ability to share information with another product we use. We were thrilled - until we installed it and tried to use the sharing function.

Didn't work. We kept trying, because we figured we were doing something wrong. Finally, I contacted technical support - and was told the sharing function did not work. The developers hoped to get it working by the next release.

Would we have to pay for the upgrade to fix the problems in the last version? They said the new version would have new features in addition to the fixes, and they weren't sure about price. Uh-huh.

I can't think of an industry that consistently treats its customers with greater disdain. But change is coming - and it's for the worse.

The software industry has been lobbying for a change in the Uniform Commercial Code, which is designed to keep businesses from dealing with 50 sets of state laws. The code is written by a standards organization and then presented to each state legislature, where it's usually adopted.

The change would legitimize the kind of "shrink-wrap license" at the top of this column. Right now, software doesn't fit neatly into any legal category. Some courts consider it a product, and states protect people who buy products.

But the software industry wants legal confirmation that you never buy software; you just are "licensed" with a limited right to use it. And because it's a contractual agreement, the only protections are the agreements in the license.

And who writes the license? The software maker, of course. All the consumer gets is a take-it-or-leave-it choice that you can't see until you've taken the product home and opened it.

Courts have been split on whether those licenses are valid. If the proposed Article 2B of the Uniform Commercial Code is adopted, the software companies can limit what jurisdiction you can sue ++ in, can declare that they're not responsible - even to meet the claims on the outside of the package - and can set preconditions for litigation, such as arbitration.

The publishers say they need protection in today's litigious society. I say their protection is simple: Don't make defective products.

Consumers need to speak up.

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