NetAction Notes

Published by NetAction Issue No. 60 September 14, 2000
Repost where appropriate. See copyright information at end of message.

IN THIS ISSUE:

Back to Basics
Software: The Buyer's Perspective
About NetAction Notes

Back to Basics

It has been more than four years since NetAction was founded, and in that time interest in using technology for activism has increased dramatically. Several well-funded projects have been initiated to help nonprofit organizations put technology to use. The technology consulting business has exploded as more organizations have developed web sites, started mailing lists, and launched online advocacy campaigns. We're even seeing for-profit businesses starting up to serve the nonprofit sector's technology needs.

All of this is exciting. But how much of it is really necessary? Many organizations and individual activists are still challenged by such basic technology skills as sending and receiving email reliably. Even in organizations that conduct sophisticated online advocacy campaigns, feature cutting edge technology on their web sites and manage multiple email lists, it is not uncommon to find just one or two people with the skills necessary to put technology to use in creative ways.

I've been reminded of this frequently over the past year because I've been working closely as a volunteer board member with the California Abortion and Reproductive Rights Action League. CARAL is a grassroots advocacy organization working to protect a range of women's reproductive rights. As part of its advocacy program, CARAL operates an email action alert list with several thousand subscribers, and maintains two web sites. One of the sites, http://www.caral.org is focused on advocacy while the other, http://www.choice.org, is devoted to the programs supported by CARAL's non-advocacy Pro-Choice Education Fund.

CARAL's technology challenges are no different than those facing many other nonprofit organizations. Newly hired staff need help learning how to use software that they haven't used before. Email browser Internet settings need to be configured. Decisions need to be made about trying digital subscribe line (DSL) service, partnering with charity portals for online fundraising, and upgrading the office software.

None of these are difficult issues to address, given sufficient time. But time is a precious commodity for many nonprofits. Too few people, with too few resources, are trying to accomplish more than is humanly possible. Under the circumstances, it isn't surprising if the skills necessary to make the most effective use of technology are in short supply.

I think it's important for those of us who are enthusiastic about technology's potential to keep this in mind. Sure, there are many organizations using technology in creative ways. But many more are still learning the basics.


Software: The Buyer's Perspective

NetAction, joined by Computer Professionals for Social Responsibility (CPSR) and CompuMentor, is asking the Federal Trade Commission (FTC) to ensure that software purchases are protected by the same law that governs the sale of other consumer products.

That law, the Magnuson-Moss Warranty Act of 1975, requires that product warranties and other conditions of a sale be clear, understandable, and -- most importantly -- disclosed prior to the purchase. The requirement enables consumers to make informed decisions about the products they buy. This is always an important consideration, but especially so with products like software that not only can cost hundreds of dollars but can't be returned to the retailer once the package has been opened.

So disclosure of the warranty and licensing terms before the sale seems like a reasonable requirement. But that isn't how the software industry sees it.

The common practice among software publishers has been to disclose warranty and licensing terms after the consumer has purchased and started to install the software. Typically, when a consumer attempts to install new software a window appears that informs the user that by completing the installation, she or he is agreeing to the software publisher's terms. Those terms are almost always described in complex legal language and displayed in a small, scrolling window. It's doubtful that many consumers bother to read the terms before clicking the "Accept" button and completing the software installation.

So, in essence the buyer is forced to agree to the terms in order to use the software. This practice is now the subject of a proposed state law, the Uniform Computer Information Transaction Act (UCITA). UCITA would sanction the industry's practice of disclosing warranty and licensing terms after the sale, designating the software purchase as a "license" of intellectual property rather than as the purchase of a consumer product.

So far, only the Virginia State Legislature and the Maryland General Assembly have approved UCITA, but it is expected to be introduced in all 50 states within the next two years. Virginia has delayed its implementation until July 2001 in order to consider the concerns that have been raised about it, and Maryland approved an amended version of the proposal. It is expected to be introduced in all 50 states within the next two years.

Concerns about UCITA have been raised by the FTC staff and the Attorneys General of 26 states, as well as by many consumer groups, software developers, law professors and professional organizations.

Individual consumers are not the only software purchasers who will be hurt if UCITA is adopted. Public institutions such as schools and libraries, nonprofit organizations, and small businesses will also be effected. UCITA's licensing terms are so restrictive, in fact, that they threaten to diminish the potential benefits of technology for everyone.

Because the issue is controversial, the FTC has solicited written comments from interested parties and scheduled a public forum for Oct. 26-27 to consider the implications of UCITA on existing consumer protection law. See: http://www.ftc.gov/bcp/workshops/warranty/index.html. NetAction, joined by CPSR and CompuMentor, submitted comments on Sept 11, 2000. Our comments, drafted by Prof. David R. Rice of Roger Williams University School of Law, are on the web at: http://www.netaction.org/press/ucita/ftc.html.

Although software publishers consider their product intellectual property which consumers are merely licensing for use, in our analysis the "market reality" is something else. For consumers, software is a product which can be purchased, and policy makers should focus on these market realities to ensure adequate protection of consumers.

NetAction is also asking the FTC to ensure that consumer protections are "technology neutral" by adopting a Trade Regulation Rule so that the same protections apply whether software is purchased in a box from a retail store, or downloaded from a website.

As Prof. Rice notes, a copy distributed online differs only in terms of the means of distribution.

The software warranty issue has been debated for several years. It was initially considered by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) as an amendment to the Uniform Commercial Code. At that time, it was referred to as the "shrinkwrap" license proposal. (See NetAction Notes Numbers 37 and 57 for our earlier reports on this issue.)

The ALI ultimately opposed the proposal, but after further debate it was approved by the NCCUSL in July 1999 and sent to state legislatures for consideration.

In addition to the FTC's public forum, the American Library Association's (ALA) Washington Office has organized a workshop, a teleconference and an online tutorial on UCITA. Details can be found on the ALA website at: http://www.ala.org/washoff/alawon/alwn9072.html. Additional background is at: http://www.ala.org/washoff/ucita101.html.

Other useful resources include a lobbying guide prepared by Slashdot, at: http://slashdot.org/features/00/02/17/0038235.shtml and the 4Cite Coalition's comprehensive background at: http://www.4cite.org.


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