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Why You Should Stop Before You Click

By Ed Foster, Section Columns
Posted on Fri Mar 11, 2005 at 08:22:35 AM PDT

This week the Americans For Fair Electronic Commerce Transactions (AFFECT) coalition announced its "Stop Before You Click" campaign promoting its 12 Principles for Fair Commerce in Software and Other Digital Products. But what does AFFECT mean by all that? After we stop before we click, what do we do next?


My long-time readers know AFFECT as the organization that succeeded in stopping the spread of UCITA, the Uniform Computer Information Transactions Act. UCITA, an incredibly customer-unfriendly model state law pushed by Microsoft and friends, was hurriedly enacted in Virginia and Maryland before interest groups opposed to it could effectively get organized. Once those interest groups - including ones representing consumers, civil rights advocates, computer engineers, librarians, software programmers, and corporate IT purchasers -- got their act together, UCITA was stopped dead in its tracks. Now AFFECT has decided it's time to go beyond trying to stop bad laws and to actively promote customer-friendly business practices in the technology sector.

Before we go any further, let me just make it clear I am by no means a neutral observer of AFFECT or this campaign. I'm proud to have been a member of the organization from its inception and to have participated in the task force that drafted the Principles. In the interests of full disclosure, AFFECT helped me launch the GripeLog two years ago by becoming a charter advertiser. So, yes, I'm biased, but it's in favor of a cause in which you know I whole-heartedly believe.

While UCITA itself is "still dead" for the most part, unfortunately its spirit is still with us in the DMCA and other legislation, awful court decisions like the Blizzard case, and all the outrageous, one-sided sneakwrap terms we see all the time. So AFFECT formed a task force to draft a set of principles for fair dealing in digital products. Personally, I thought it would take us three or four months, maybe six months tops, to boil our ideas down to half-a-dozen core principles. That was 18 months ago, and we finally put a lid on it at a dozen principles. Frankly, we could easily add a few dozen more and not come close to addressing all the unfair software terms and practices that we would like to have included. But it's show time.

To serve as the home base for the Stop Before You Click campaign, AFFECT has launched a new website, www.fairterms.org. The site is still a work in progress, and there will soon be more resources including a blog that yours truly is going to moderate. But you can already read the 12 Principles, sign up to receive updates and action alerts on the campaign, and see how your organization can endorse the Principles. Business and institutional customers can learn how to use the Principles and the FEULA (the model Fair End User License Agreement) to begin encouraging software vendors to adopt fairer practices and fairer licensing terms. There will be more on that as readers and I work on improving the beta FEULA.

And at the top of FairTerms.org you'll also see the campaign logo: "Stop Before You Click - insist on fair digital product terms." In other words, the next time you're faced with "clicking OK" to a long tangle of sneakwrap gobblygook, stop and ask yourself a few questions. Why should you have to spend precious moments of your life reading these things? Why would any judge or policymaker rule such no-choice "agreements" to be a binding legal contract? Why can't there be some limits set on just how one-sided and unfair EULAs can be?

And then insist - in every way you can - that you no longer be put in this position. Insist that vendors who won't at least make their EULAs readily available on their website won't get your business. Insist that your legislators fix atrocities like the DMCA and protect us from the spirit of UCITA. Insist that our courts recognize that it's not just the megacorporations and owners of intellectual property that are supposed to have rights. Yes, it's going to be a long process, and that's why I hope you'll visit AFFECT's new site today and return often as the campaign takes shape. Stop before you click, and then click www.fairterms.org.

--------------------

Post your comments about this column below or write me directly at Foster@gripe2ed.com. To receive this column every week in my free e-mail newsletter, please go to my subscription page and follow the instructions to opt-in for the EdFoster mailing list.

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Why You Should Stop Before You Click | 10 comments (10 topical) | Post A Comment
ED IS LOSING THE WAR[ Reply to This ] (none / 0) (#1)
by Anonymous User on Fri Mar 11, 2005 at 10:20:44 AM PDT

While one appreciates activism in stopping laws that run contrary to one's position, like Ed, stepping back and looking at the forest can give perspective. From 1993 - 2003, contract filings (litigation), which are more likely to involve businesses than tort cases, rose by 21%. See, "Examining the Work of State Courts", 2003, at 23, National Center for State Courts, 2004. Tort cases (personal injury, etc.) have generally decreased in that same period. Having ambiguous laws regarding certain intellectual property assets (e.g., data, software) in fifty jurisdictions ultimately costs corporations more. Consider the "war" in reducing the costs of litigation versus the battles against any reform whatsoever. Some believe this is throwing the baby out with the bath water. Companies have high transaction costs wrestling with these legal ambiguities, at the negotiation table or in court. Small businesses (often family-owned) suffer under this regime of ambiguity the most as they do not have resources to fund litigation. Ed and his junta should focus on the needs of everyone, not just miserly billion-dollar companies.

[ Reply to This ]


ED IS TRYING TO WIN THE WAR[ Parent | Reply to This ] (none / 0) (#2)
by srynas on Fri Mar 11, 2005 at 01:08:10 PM PDT

How is Ed "favoring" the large corporations over the needs of everyone? It does not compute. Ed is trying to create a "level playing field" where both the consumer and the business are providing fair value to each other. Companies may have high transaction costs, but it is the companies that are establishing the rules by soliciting the government to deprive the consumer of legal recource. For example, the credit card industry has suceeded in changing the bankruptcy court to make it harder to declare bankruptcy. While, I would agree that bankruptcy should be difficult, I have not heard of any restrictions barring the credit industry from soliciting people who obviously have poor money management skills. If credit is not given, then no legal costs associated with collection. If the business community stops abusive practices, then the "high" transaction costs of doing business will decline.

[ Parent | Reply to This ]


Customer laws[ Reply to This ] (none / 0) (#3)
by Jarulf on Fri Mar 11, 2005 at 11:33:28 PM PDT

Just wondering, doesn't USA have any customer (protection, sale, whatever) laws? Is it possible to sell anything under any condition? Can one sell a toaster or a car under the provision that there is no warranty, no merchantability, liability or in fact a guarantee of it even being a toaster or a car? Can one include conditions that you don't own the toaster or car after the purchase and so on? Can one in addition change cush contracts at wim without informing? If not, why would those laws not be applicable to computer software?

Here is a link to a EU directive for something similar, notice the list at the end as EXAMPLES 8not complete list) of things in general considered not acceptable and enforcable in consumer laws (be it product sales, services and anything else).

http://europa.eu.int/clab/

[ Reply to This ]



Of course we do[ Parent | Reply to This ] (none / 0) (#4)
by Anonymous User on Sat Mar 12, 2005 at 07:00:47 AM PDT

Yes, the US offers legal protections for consumers, such as an implied warranty of merchantability on goods sold, various safety regulations, etc. Even some of the laws that have a protectionist bent to them can have a consumer oriented element or two. Take the Audio Home Recording Act of 1992 as an example: this law helped kill off DAT making its way to non-professional, general consumer use (at the time the music industry feared a trend in Japan where people rented and borrowed CDs and copied them to DAT -- sound familiar?). But, the bill also explicitly clarified that some common, 'gray area' practices were fair use, such as making a compo tape of mushy songs to give to your girlfriend.

The problem is that for every legal protection we gain through treaty, law, or court ruling, Congress seems to make a boneheaded law that muddles up things again. The DMCA is probably one of the absolute worst that I have seen. And, it is both parties that do this. One is not better than the other in this respect. The interests they are beholden to may be different, but it is never the general consumer. It often seems our representatives only get consumer-focused when their party is out of power. As soon as they get back in power, and thus able to push legislation through, they focus once again on the special interests that got them there.

I personally think looking to the government for a solution to this is a mistake. Special interests with massive lobbies aside, you are dealing with people whose greatest skill in life is getting elected, yet they make laws regarding medicine, trade, economics, technology, ethics (hah!), and hundreds of other areas they no nothing about. This results in steaming piles of legalese such as CAN-SPAM. Instead the most effective solutions will use the free market in the consumer's favor.

I think one thing that would be nice for the tech community would be a central clearing house you could go to and look up by company and product EULAs, unfair practices, general complaints on service, complaints about a products itself, etc. Maybe it could maintain ratings the companies and products across several categories (license fairness, quality of service, etc).

[ Parent | Reply to This ]


It's calleed Better Business Bureau[ Parent | Reply to This ] (none / 0) (#5)
by Anonymous User on Tue Mar 15, 2005 at 01:58:29 PM PDT

Now only if the BBB would set up a epinions.com or eBay rating system the plebian consumer could log onto there would be a better world. Wild West rules, sure, but in the end the one with the least moans and groans would be the best customer service/product and therefore win the economic game of profitability.

[ Parent | Reply to This ]


A Slightly Different Approach[ Parent | Reply to This ] (none / 0) (#6)
by Anonymous User on Wed Mar 16, 2005 at 12:01:13 AM PDT

Clark Howard, a consumer-crusader type radio talkshow host, said a while back that a study showed bad service and support does tend to catch up with companies in the US. The problem is it usually takes at least two years.

There needs to be a way to speed up this process. I think a 'clearing house' for comments and ratings on companies and products is a worthy idea. But, if it is a niche site that few people know about, it will do little good. Also, how do stop people from flooding it with false claims? A company could post positive reviews and ratings over and over again to beef up its image. Likewise, a competitor or customer suffering for sour grapes could do the opposite to lower a company's image. There would have to be safe guards against such things.

If the implementation is successful, there will be another problem: companies with bad ratings will begin to sue. There needs to be protection here as well (even if the suit has no merit, facing deep pockets across the court room could easily end such a venture).

The Better Business Bureau could provide an answer to at least some of these issues, but quite frankly they operate with a mentaility that is incredibly outdated.

Another possibility, at least for the IT industry, is to use existing professionals groups (ACM, IEEE, etc) to maintain a list of complaints and ratings. Heck, go even farther and if a certain threshold of complaints is reached against a company or product, the group could circulate a notice with the greivences outlined and stage a boycott of the product(s) by its members until the company makes the needed changes. Maybe even a new group, Consumers of Gadgets (COG), should be formed for this purpose.

Seriously, though, something has to be done. This industry is getting bad.

[ Parent | Reply to This ]


This industry is getting bad.[ Parent | Reply to This ] (none / 0) (#7)
by Anonymous User on Wed Mar 23, 2005 at 07:31:00 AM PDT

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[ Parent | Reply to This ]


wow gold[ Reply to This ] (none / 0) (#11)
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wslaat[ Reply to This ] (none / 0) (#12)
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[ Reply to This ]


wowgolds987[ Parent | Reply to This ] (none / 0) (#13)
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