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I seem to
remember that when I subscribed to, oh, The New Yorker, I sent in some money
and eventually the magazine started arriving in my mailbox. Not so simple
in the digital era. The other day I used my computer to subscribe to Slate,
an on-line magazine owned by Microsoft, and after I gave up my name, E-mail
address, postal address, credit-card number, and choice of gift (I declined
the free umbrella), the screen presented me with the first few lines of a
2,000-word contract. Below this was a button marked "I Agree." There was
also a button marked "Cancel." I looked in vain for a button marked "Let's
Negotiate—My Lawyer Will Be in Touch with Your Lawyer."
I realize now that before you read any further we should agree
on some ground rules.
First of all, by reading Fast Forward you confirm your acceptance
of, and agree to be bound by, and promise never to call your lawyer to
make light remarks about, this Agreement.
Further, you're not buying a car or a toaster here. This department
makes no express or implied representations or warranties to you regarding
the usability, condition, or operation thereof. We do not warrant that access
or use will be uninterrupted or error-free or that we will meet any particular
criteria of performance or quality. No matter how bad the product is,
it's your problem, not ours.
And after all this, if you think you've found a loophole and
actually wish to sue, start by calling your travel agent, because you
consent to the exclusive jurisdiction and venue of courts in King County,
Wash. Oh, no, wait—that's Microsoft.
"Yes, it's absurd," says Michael Kinsley, Slate's editor. But
no more absurd, he adds, than agreements at other sites. (Sure enough, The
New York Times has a long contract for its own on-line subscribers.) Internet
magazines are more complicated, interactive, and bug-prone than their print
ancestors and thus require, in a litigious world, more complicated legal
armor. You aren't really expected to understand it. "The entire software
industry, for that matter, depends on its customers not really reading these
things before clicking 'I accept,'" Kinsley says.
The software industry also relies on a clever legal twist: the
notion that consumers are entering into ongoing licensing agreements with
the manufacturers. You may think, as you walk out of a store, package under
your arm, that you have bought that software. The industry claims that you
have merely licensed certain limited rights to use it. It says so right there
in the agreement you will find under the shrinkwrap and toss away unread.
As a licensee, you commit yourself to a set of continuing duties.
In the case of Slate, for example, you agree to supervise any usage by minors
and to notify Microsoft "promptly"—even though you've already paid—if
you change your billing address, lose your credit card or "become aware of
a potential breach of security." Kinsley says he persuaded the lawyers to
drop a clause that would have required all his readers to maintain their
computer equipment in working order.
Are all these shrinkwrap and
"clickwrap" agreements really enforceable? After all, the manufacturers know
perfectly well that customers have neither the time nor the expertise to
read them, and often the agreements are hidden in boxes until well after
the customers have paid up. No one knows for sure. In real life, manufacturers
almost never try to enforce the sillier terms, and most of the damages people
suffer from defective software tend to be in the nature of lost time—hours
spent cursing the computer or waiting on hold for technical support—and
it's hard to sue over that.
Steve Tapia, a Microsoft corporate attorney, says it just wouldn't
be fair to hold software to the same standards as, say, a car. That's lucky
for him, because car makers have found it very expensive to sell cars with
defects—especially defects they knew about. They can't just disclaim
any obligation to guarantee their products. Software is different, Tapia
says, "because personal computer software may be used for a myriad of different
purposes on an infinite amount of hardware combinations."
In the early days of personal computers, users were mostly technical
types willing to wrestle with flawed software. They forgave some of the bugs,
in versions 1.0, anyway. Now that computers are a mass-market product, they
reach more naïve customers who might actually expect their software
to work. That must be why dozens of companies feel compelled to make users
agree that they're on their own if they use the products in hazardous
environments requiring fail-safe performance, such as in the operation of
nuclear facilities, aircraft navigation or aircraft communication systems,
air traffic control, direct life support machines, or weapons systems, in
which failure of the software could lead to death, personal injury, or severe
physical or environmental damage.
Some legal departments have been getting more creative lately.
Customers who download Network Associates' antivirus software
"agree"—click—to clauses designed to give the company control of
press coverage: "The customer shall not disclose the results of any benchmark
test to any third party without Network Associates' prior written approval";
and "the customer will not publish reviews of the product without prior
consent."
Meanwhile, the agreement that comes with Microsoft Agent, software
that lets people create cute interactive animated figures, holds that you
may not use the characters "to disparage Microsoft, its products or services."
Will the next version of Microsoft's operating system have a clause like
that? I'll have to find a typewriter?
Perhaps some of these contract terms are striding defiantly
past the limits of existing law—but the law is likely to change shortly,
in all 50 states. A major revision is under way in the foundation of American
commercial law, the Uniform Commercial Code. The drafters, a committee of
lawyers established for the purpose, have created a new statute, Article
2B, specifically to cover software and other information products. To the
horror of some consumer groups, the
current draft ratifies the most aggressive provisions of today's software
licenses.
It would set into law the idea that software customers aren't
buying "goods" but merely licensing certain rights. It makes the licenses
binding even when customers have not read them, when the customers casually
clicked an on-line button, and when the customers could not have seen the
agreements until after buying the products.
The draft legitimizes confidentiality and nondisclosure clauses
like Network Associates', forbidding users to publish reviews of a product.
And it would explicitly allow manufacturers to disclaim warranties; it even
suggests language: "this [information] [computer program] is being provided
with all faults, and the entire risk as to satisfactory quality, performance,
accuracy, and effort is with the user."
"It's the drafting committee's view that bugs are inevitable
in software and that makes software different," says
Cem Kaner, a lawyer
and software consultant opposing these provisions. He argues that Article
2B in its present form will be a disaster not only for consumers but also
for the more honorable software companies; it will reward companies that
try to grab market share by rushing to market with buggy software.
"If there are no refund rights, no lawsuit rights, no legal
disincentives, then companies that ship prematurely enjoy an unfair advantage,"
Kaner says. "In the process of protecting the worst companies from the
consequences of their worst products, we pressure better companies to do
a worse job."
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