Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: Notesfiles $Revision: 1.7.0.10 $; site uiucuxa Path: utzoo!watmath!clyde!burl!ulysses!mhuxr!mhuxt!houxm!ihnp4!inuxc!pur-ee!uiucdcs!uiucuxc!uiucuxa!rp321 From: rp321@uiucuxa.CSO.UIUC.EDU Newsgroups: net.micro Subject: Re: Your software rights are in danger Message-ID: <9400010@uiucuxa> Date: Sat, 14-Dec-85 17:41:00 EST Article-I.D.: uiucuxa.9400010 Posted: Sat Dec 14 17:41:00 1985 Date-Received: Mon, 16-Dec-85 03:57:43 EST References: <9400009@uiucuxa> Lines: 155 Nf-ID: #R:uiucuxa:9400009:uiucuxa:9400010:000:4701 Nf-From: uiucuxa.CSO.UIUC.EDU!rp321 Dec 14 16:41:00 1985 [ more food for thought ] Here is the first of two discussions of the Illinois Software License Enforce- ment Act by attorney Keith Hays, Grosser and Hays Law Offices, Champaign, IL. Taken from the Tranquillity II BBS, Urbana, IL, (217)384-8173. (from the TQ II magazine) P.S. Please excuse the 40 column text. The article is reproduced exactly as it appears on TQ II, which runs on a TI-99/4A (yes, those machines still exist :-) ) Russell J. Price USnail: 1111 S. Arbor St. Champaign, IL 61820 /// / Q II ------------------- | | | | THE | The Bar | | | | | | at _LAW_ & _YOU_ | OLD BAILEY | ||||||| ---------------------------------------- The Illinois Software License Enforcement Act Dec 1, 1985 Last week I looked into the application of the general law of Warranty and the Uniform Commercial Code as applied to software purchases. The software publishing industry does not agree with my analysis. The industry takes the position that software is not "sold", but rather it is licensed to the user. While this may seem like arguing about semantics, the resolution of that disagreement can have far reaching results. If the industry prevails in its position, then the general law of implied and express warranties does not apply to computer software distributed through the marketplace. The Illinois Software License Enforcement Act is major victory for the software industry. Although the subject matter is not warranty law, this legislation legitimizes the shrinkwrapped license agreement. Prior to the enactment of this legislation the concealed terms of these so-called agreements was in grave doubt. When it becomes effective on July 1, 1986, the Act will bind the software purchaser to the terms of these hidden contracts. While the language of the act disclaims any application of its terms to alter express or implied warranty law, its implicit definition of the transaction as a licensing arrangement rather than a sale has the effect of drastically reducing the consumers remedy for shoddy and inoperable commercial programs. We, the end users, are in the middle of a conceptual debate. The question is whether a computer program is an article of merchandise or the expression of an intellectual idea. The former concept regards programmatic material as a tool. A hammer, for example is an article of merchandise that has a specific purpose. When you buy that tool, the law recognises that you have the right to expect that it will perform the function for which it was intended. The latter concept regards the program as though it were a composition. Books and works of music may be intended to convey a specific message, but they do not come with a warranty that the reader or listener will derive the meaning that the author of the work intended to convey. When you look at the nature of software, you begin to see the problem. Software is a tool. We acquire it to accomplish a particular function. We part with our cash in the expectation that it will perform its intended task. On the otherhand the courts have held that software is not patentable, but rather it is an article of intellectual property, similar to books and music. Patented devices have a built in protection against duplication. Most of us have not the necessary skill, equipment nor raw materials to duplicate a hammer. Most of us do have the skill and equipment to copy the tools we use on our computers. The evolution of legal mechanisms to protect the legitimate concerns of software developers will require legislative solution. The danger, as represented by the Illinois Software License Enforcement Act is that it will tip the balance of interests between developer and user too far to the developers benefit and gives no protection to the consumer. Indeed, the software company is not only given the protection of the hidden contract terms, but the act encourages lawsuits against individual consumers. The prevailing software company is to be awarded its attorney's fees and costs but the sucessful defendant gets no such reward. The Illinois Software License Enforcement Act is a ticking time bomb, set to go off next July 1. When it explodes, any rights you may have to expect that the program you buy will do what it claims to do, may well be a casualty of the blast -==< * >==- L Keith Hays Grosser Hays Law Office 702 Bloomington Rd Champaign IL 61820 (217)) 352-2784