A proposed change to the Uniform Commercial Code, which is being promoted by Microsoft and other software vendors, would modify Article 2E of the Code which protects buyers when something such as a warranty provision is not specifically covered in a sales contract. The National Conference of Commissioners on Uniform State Laws (NCCUSL) is being asked to modify Article 2B to make the written license inside a "shrink-wrapped" product enforceable. To date there have been conflicting court rulings on whether such licenses are enforceable because purchasers don't see them until after they make a purchase. In its current draft, Article 2B would not only validate in-box licenses, but would extend their provisions to all software. One section would require purchasers to accept software that has defects or errors, so long as the software "substantially conforms" to the purchase contract. The article would also limit vendor liability for corrupted data and other damages caused by faulty software. Another provision would allow vendors to access their software at a customer site and shut it off or disable it in the event of a dispute. Vendors would also be able to choose which state's laws would be applicable in such disputes. The membership of NCCUSL is expected to vote on the proposed change in August. If passed, the revised code would be available for adoption by state legislatures.
While it may be possible to negotiate better purchaser protection in the case of major software purchases valued at tens or hundreds-of-thousands of dollars, the new licenses may be difficult to overturn when smaller purchases are made.
Susan Nycum, an attorney in Palo Alto, California, has written a white paper on the issue. It is available at www.simnet.org/public/ucc.html. Librarians may wish to contact their library association: AALL, ALA, MLA, SLA, etc.
