Son Goku
03-01-03, 08:10 PM
http://www.ieeeusa.org/forum/POSITIONS/digitalworks.html
Non-Negotiable Terms and Conditions in the Sale or Transfer of Computer Software and Other Digital Works
(Approved by the IEEE-USA
Board of Directors, 12 Feb. 2003)
IEEE-USA recognizes the need to impose some terms and conditions on the sale or other transfer of computer software and other digital works. These generally come about through "shrink-wrap" or "click-on licenses." However, it is important that consumers understand such provisions, the provisions not be overreaching, and that there be nationwide uniformity in the law governing such non-negotiable terms and conditions.
To achieve those goals, IEEE-USA recommends that:
The terms and conditions for a particular transaction should be available before the transaction occurs and must be available at any time after the transaction.
Before their actual use of computer programs or digital works, if purchasers or users are dissatisfied with the terms and conditions, they may return the computer software or digital works at the vendor's expense.
Only standardized terms and conditions should be permitted, to help consumers understand the limitations being imposed on them.
That is not to say that IEEE-USA believes that there should be a single set of terms and conditions. A number of alternative provisions should be available, so that vendors can compete by providing better terms to consumers or so that alternatives such as open source software, which depend on special license provisions, can exist.
Congress should establish a mechanism for the review of suggested provisions to assure that they are not against public policy and are fully explained to the public, perhaps through administrative review with public comment by an agency such as the Federal Trade Commission. The burden should not be on an individual consumer to show that a provision is unconscionable, but on those proposing a provision to show that it is fair and reasonable.
IEEE-USA further believes that some non-negotiable terms and conditions should never be permitted, including provisions that:
Prohibit commenting on a product, including the publication of benchmarks comparing the product to its competition.
Convert what would otherwise be a sale into a license and thereby affect established user rights in copyright.
Forbid the transfer of the computer software or digital work to somebody willing to abide with the original restrictions on the work.
Permit "self help" that purports to authorize the accessing of a user's computer to enforce the terms of a license, particularly when it is accompanied with a disclaimer of liability for any damage caused.
Require that a consumer bring any legal action in a forum inconvenient to that consumer.
IEEE-USA believes that vendors of computer software or other digital works subject to non-negotiable terms and conditions should not be permitted to disclaim all warranties except when the works are distributed at no cost to the recipient. In all other cases, vendors must at least warrant that the digital information may be read on any device appropriate for the media except to the extent clearly stated to the contrary. Unless the computer software or other digital works are being provided for no more than the media duplication and shipping and handling costs, vendors must also warrant that a product substantially conforms to its documentation and any other representations made by its developers and distributors. Remedies for these warranties must include, but may be limited to, the return of the product for a complete refund within a reasonable period of time. Incidental and consequential damages may be disclaimed only to the extent permitted by state law.
This statement was developed by the Intellectual Property Committee of the IEEE-United States of America (IEEE-USA), and represents the considered judgment of a group of U.S. IEEE members with expertise in the subject field. IEEE-USA is an organizational unit of the Institute of Electrical and Electronics Engineers, Inc., created in 1973 to promote the careers and public policy interests of the more than 235,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE...
Emphasis added The article goes on to provide some background information concerning the IEEE-USA's stated position on the matter.
Non-Negotiable Terms and Conditions in the Sale or Transfer of Computer Software and Other Digital Works
(Approved by the IEEE-USA
Board of Directors, 12 Feb. 2003)
IEEE-USA recognizes the need to impose some terms and conditions on the sale or other transfer of computer software and other digital works. These generally come about through "shrink-wrap" or "click-on licenses." However, it is important that consumers understand such provisions, the provisions not be overreaching, and that there be nationwide uniformity in the law governing such non-negotiable terms and conditions.
To achieve those goals, IEEE-USA recommends that:
The terms and conditions for a particular transaction should be available before the transaction occurs and must be available at any time after the transaction.
Before their actual use of computer programs or digital works, if purchasers or users are dissatisfied with the terms and conditions, they may return the computer software or digital works at the vendor's expense.
Only standardized terms and conditions should be permitted, to help consumers understand the limitations being imposed on them.
That is not to say that IEEE-USA believes that there should be a single set of terms and conditions. A number of alternative provisions should be available, so that vendors can compete by providing better terms to consumers or so that alternatives such as open source software, which depend on special license provisions, can exist.
Congress should establish a mechanism for the review of suggested provisions to assure that they are not against public policy and are fully explained to the public, perhaps through administrative review with public comment by an agency such as the Federal Trade Commission. The burden should not be on an individual consumer to show that a provision is unconscionable, but on those proposing a provision to show that it is fair and reasonable.
IEEE-USA further believes that some non-negotiable terms and conditions should never be permitted, including provisions that:
Prohibit commenting on a product, including the publication of benchmarks comparing the product to its competition.
Convert what would otherwise be a sale into a license and thereby affect established user rights in copyright.
Forbid the transfer of the computer software or digital work to somebody willing to abide with the original restrictions on the work.
Permit "self help" that purports to authorize the accessing of a user's computer to enforce the terms of a license, particularly when it is accompanied with a disclaimer of liability for any damage caused.
Require that a consumer bring any legal action in a forum inconvenient to that consumer.
IEEE-USA believes that vendors of computer software or other digital works subject to non-negotiable terms and conditions should not be permitted to disclaim all warranties except when the works are distributed at no cost to the recipient. In all other cases, vendors must at least warrant that the digital information may be read on any device appropriate for the media except to the extent clearly stated to the contrary. Unless the computer software or other digital works are being provided for no more than the media duplication and shipping and handling costs, vendors must also warrant that a product substantially conforms to its documentation and any other representations made by its developers and distributors. Remedies for these warranties must include, but may be limited to, the return of the product for a complete refund within a reasonable period of time. Incidental and consequential damages may be disclaimed only to the extent permitted by state law.
This statement was developed by the Intellectual Property Committee of the IEEE-United States of America (IEEE-USA), and represents the considered judgment of a group of U.S. IEEE members with expertise in the subject field. IEEE-USA is an organizational unit of the Institute of Electrical and Electronics Engineers, Inc., created in 1973 to promote the careers and public policy interests of the more than 235,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE...
Emphasis added The article goes on to provide some background information concerning the IEEE-USA's stated position on the matter.