edski@mot.UUCP (Ed Skinner) (03/21/85)
A bill recently introduced in the Arizona legislature, and
already passed into law in Louisiana, will have significant
effects on consumer rights concerning software. As the
change is being pushed very energetically by software
companies, you may expect it to be introduced into the
legislature of your state very soon, if it's not already
(quietly) there!
Among other things which the proposed law would "provide"
are; Buyers will have no recourse if the product was
misrepresented by a salesman. Buyers would have no recourse
if the product simply didn't work. Buyers would not be able
to resell the product, even if they later decide they don't
want it after all. Buyers would not be able to correct any
problems in their copy of the product. It would be illegal
to modify the product in any way, no matter what the
purpose.
The part that bothers me the most is that once you open the
package, it's yours. This means that if you buy something
and open the package to try it, and then discover that the
salesman lied, or misled you (whether intentionally or
accidentally), you cannot get your money back. You are
stuck!
The following is a complete transcription of the proposed
amendment, State of Arizona. It is a word for word copy of
the one written by Vault Corporation (remember Killer
Prolock???), and passed by the state of Louisiana last year.
(Typos are probably my own fault.)
-------------------------------------------------
Senate SB 1306. Introduced February 11, 1985 by Senator
Davis.
AN ACT Relating to trade and commerce: providing for the
presumption of acceptance of computer software license
agreement: prescribing definitions: prescribing conditions
and terms of acceptance: prescribing form of license
agreement, and amending Title 44, Arizona Revised Statutes,
by adding Chapter 13.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 44, Arizona Revised Statutes, is amended by
adding Chapter 13, to read:
Chapter 13 Software License Agreements
44-2101. DEFINITIONS. In this chapter, unless the context
otherwise requires:
1. "Computer Software" means a set of statements or
instructions to be used directly or indirectly in a computer
to bring about a certain result, in any form in which such
statements or instructions may be fixed, by any method now
known or hereafter developed, regardless of whether such
statements or instructions are capable of being perceived by
or communicated to humans, together with any associated
documentation and materials.
2. "License Agreement" means any written document on which
the word "License", either alone or in combination with
other words, appears prominently at or near the top of such
document in such a position of prominence so as to be
readily noticeable to a person of average literacy viewing
the document.
3. "Reverse Engineering, Decompiling or Disassembling" means
any process by which computer software is converted from one
form to another form which is more readily understandable to
humans, including any decoding or decrypting of any computer
program which has been encoded or encrypted in any manner.
44-2102. REQUIREMENTS FOR PRESUMPTION OF ACCEPTANCE. A
person who acquires computer software or a copy of computer
software is presumed to have accepted and agreed to all the
terms of an accompanying license agreement for such software
or copy, including any applicable provisions of section 44-
2103, if:
1. A written legend or notice is affixed to or packaged with
the software or copy in such a manner that the legend or
notice is clearly and conspicuously visible on examination
of the software and related packaging.
2. The legend or notice is prominently displayed in all
capital letters and in language which is readily
understandable to a person of average literacy.
3. The legend or notice states clearly that:
(a) Any use of the software or copy will constitute
acceptance of the terms of the accompanying license
agreements.
(b) Opening of a sealed package, envelope or container in
which the software or copy is contained constitutes
acceptance of the terms of the accompanying license
agreement.
4. The legend or notice states clearly that a person who
receives the software or copy and does not accept and agree
to the terms of the accompanying license agreement may,
within a reasonable time, return the unused, unopened
software or copy to the party from whom it was acquired, or
to some other identified party, for a full refund of any
consideration paid.
5. The person acquiring the software or copy understands
that the action stated in the legend or notice constitutes
acceptance of and agreement to the terms of the accompanying
license agreement.
44-2103. TERMS PRESUMED ACCEPTED. Terms presumed to have
been accepted under section 44-2102, if included in an
accompanying license agreement which conforms to the
provisions of Section 44-2104, may include any or all of the
following:
1. Provisions for the retention by the licensor of title to
the copy of the computer software.
2. If title to the copy of computer software has been
retained by the licensor, provisions for the prohibition of
any copying of the copy of the computer software for any
purpose or limitations on the purposes for which copies of
the computer software can be made including limitations on
the number of copies of the computer software which can be
made.
3. If title to the copy of computer software has been
retained by the licensor, provisions for the prohibition or
limitation of rights to modify or adapt the copy of the
computer software in any way, including prohibitions on
translating, reverse engineering, decompiling,
disassembling, and creating derivative works based on the
computer software.
4. If title to the copy of computer software has been
retained by the licensor, provisions for prohibitions on
further transfer, assignment, rental, sale or other
disposition of that copy or any other copies made from that
copy of the computer software, expect that terms which
prohibit the transfer of a copy of computer software in
connection with the sale or transfer by operation of law of
all or substantially all of the operating assets of a
licensee's business shall not be presumed to have been
accepted.
5. Provisions for the automatic termination without notice
of the license agreement if any provisions of the license
agreement are breached by the licensee.
44-2104. DISPLAY OF TERMS OF LICENSE AGREEMENT. In order to
be presumed accepted pursuant to section 44-2102, the terms
of the accompanying license agreement must be clearly and
conspicuously stated in the license agreement in language
readily understandable to a person of average literacy, and
the license agreement must be attached to or packaged with
the copy of the computer software in such a manner that the
terms are susceptible to being readily examined before the
act which is deemed to constitute acceptance occurs.
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The opinions expressed herein are my own, and do not necessarily reflect those
of my employer. Please mail replies to me, and I will summarize for the net.
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Name: Ed Skinner (edski)
UUCP: {seismo,ihnp4}!ut-sally!oakhill!mot!edski
{allegra,ihnp4}!sftig!mot!edski
USMail: MS DW-160, Motorola Microsystems, 2900 S Diablo Way, Tempe, Az 85282
Phone: (602)438-3064rb@houxn.UUCP (R.BOTWIN) (03/22/85)
Easy to get around the sale problem!!! Just set up a corporation to buy the software....There is no restriction in the law on transferring ownership to the corporation and all its assets (of course its only asset is its purchased software!) But reallistically, anyone who buys software under those restrictions better also get a firm commitment of support, or JUST NOT BUY IT!!!! Rob