WHY SOFTWARE QUALITY
SHOULD ACTIVELY OPPOSE
UNIFORM COMPUTER INFORMATION
Copyright © 1999, Cem Kaner
In Press--Software Quality Professional
|Cem Kaner, Ph.D.,
||Florida Tech, Dept
of Computer Sciense
|Law Office of Cem
||150 West University
The Uniform Computer Information Transactions Act (UCITA) is
a proposed new law that will govern all transactions in software,
including contracts for sale, licensing, documentation, maintenance
and support of computer software. It will also govern contracts
involving electronic information (movies, music, text that you
download or buy on a CD) and, at the vendor's option, can govern
sales of computers and some other devices that are sold in conjunction
Until recently, UCITA was proposed as an amendment to the Uniform
Commercial Code, and was called Article 2B. However, the American
Law Institute (ALI), one of the two organizations that must approve
all changes to the UCC, recently withdrew from the Article 2B
project. The other organization, the National Conference of Commissioners
on Uniform State Laws (NCCUSL), decided to rename the bill to
the Uniform Computer Information Transactions Act and go forward
The American Law Institute has declined to say why it withdrew
from the Article 2B project. However, their withdrawal was not
In its May 1998 Annual Meeting, the ALI passed the following
resolution: "The current draft of proposed UCC Article 2B
has not reached an acceptable balance in its provisions concerning
assent to standard form records and should be returned to the
Drafting Committee for fundamental revision of the several related
sections governing assent."
The authors of the ALI resolution (Braucher and Linzer) wrote
in their supporting memo that "The Draft reflects a persistent
bias in favor of those who draft standard forms, most commonly
licensors." (Companies that publish or sell software are
licensors under 2B.)
Additionally, in December 1998, an ALI Council ad hoc committee
formed to review Article 2B submitted a memorandum to the full
Council stating that it was unlikely that an acceptable draft
could be prepared in time for the ALI Annual Meeting in May 1999.
The memorandum raised questions about whether the project is
premature in light of rapidly changing technology and business
practices. It also noted the lack of consensus about the need
for Article 2B and the opposition to it from many affected interests.
The memorandum described the drafting of key provisions as "opaque"
and "difficult to comprehend."
For more details, see Braucher, 1999.
NCCUSL will vote on UCITA at its annual meeting, July 23-30,
1999 in Denver. There will be a final UCITA drafting committee
meeting on July 22, 1999 in Denver. For details on the meeting,
contact me at firstname.lastname@example.org or check www.nccusl.org.
If you read a copy of this article before July 22, 1999, I
urge you to write a letter to the members of NCCUSL from your
State, asking them to oppose UCITA. If you read it in the July
20-30 timeframe, you can send a letter to me and I will see that
it reaches the NCCUSL members from your state. After July 30,
send opposition letters to your state representatives.
Why We Should Actively Oppose
The simple and short answer is that UCITA will dramatically
reduce a software publisher's external failure costs for defective
software. It does this brilliantly, in a wide range of ways, reducing
the costs of customer support, of lost sales due to competition,
and of legal action.
As a result, UCITA changes the economics of software publishing.
When we reduce the risks (to the publisher) of selling defective
software, we reduce the incentive to spend the money and time
to prevent, search for, and fix defects. In turn, this tells me
that we (the American software industry):
- will ship worse software.
- will invest less money in technology and process improvement
needed to produce better software.
- will make the American industry more vulnerable to foreign
competition. Les Hatton, a well known author on software quality
(see, for example Safer C), just finished his masters
degree in law. He advises me (personal communication, May 13,
1999) that the trend in Europe is to hold software companies
more accountable for defects and to provide greater protection
for European consumers and small businesses. I believe that this
will provide a greater incentive for companies that primarily
trade in Europe to improve their products, rather than ship them
with obvious defects. Eventually, international competition will
take care of this divergence of standards. But as with the car
industry, that eventuality might be devastating for some parts
of the American economy (us software workers for
What We Can Do
For the last three and a half years, I've spent about one-third
of my time, unpaid, explaining software quality issues to legislative
drafting and regulatory bodies. I've provided input to drafting
committees for Uniform Laws (Article 2B/UCITA, Article 2UCC
law of sales, and the Uniform Electronic Transactions Act), to
people drafting laws and treaties to govern international electronic
commerce (a State Department study group, and members of the American
Bar Association), to the Federal Trade Commission, and to various
consumer protection groups. Several other software quality advocates
have shared in this work, including Watts Humphrey, James Bach,
Doug Hoffman, Sharon Marsh Roberts, Melora Svoboda, Ken Pugh,
Brian Lawrence, and Bob Johnson. Software-related professional
societies, including the Association for Computing Machinery,
the Institute for Electrical and Electronics Engineers, the Independent
Computer Consultants Association, and the software-test-discuss
mailing list (but not ASQ) have submitted letters criticizing
Here are a few things that I've learned.
First, UCITA is just one of several legislative proposals involving
software quality that will go to the state and federal governments
over the next few years. It is currently the most important. I
expect to also see proposals to:
- reduce legal liability of vendors and users of Y2K-defective
- license software testers, developers, and consultants;
- increase liability for defects in consumer or mass-market
software (various proposed lemon laws);
- limit competition, via changes to the Copyright Act to (for
example) ban or restrict reverse engineering of software products;
- increase competition, via changes to the antitrust laws (if
Microsoft prevails in its antitrust case);
- increase / decrease / regulate / deregulate privacy protection
on the Net;
- establish standards for reliability of internet services;
- establish standards for electronic signatures and other technical
aspects of electronic commerce.
There will probably be plenty of other proposals.
Second, we are credible sources of information on these types
of issues. We are industry insiders. We aren't embittered whistleblowerswe
want the industry to succeed. We also have special insightwe
know how products fail, we understand the difficulties of making
perfect products and we also know how our defects affect customers.
Our input is valuable because most of the people who will have
to evaluate these proposed laws are lawyers, and most of them
are unsophisticated about software. Many of the lawyers working
on committees writing legislation to govern electronic commerce
didn't even have e-mail accounts when they started work. Many
of the lawyers who will vote on these proposed laws still don't
have e-mail, let alone more sophisticated e-commerce experience.
Even the ones with some experience as software users get a
huge proportion of their education about software development
and marketing from other lawyers who represent software publishers.
This bias is pervasive. Legislative drafting committees dealing
with software are visited or advised by many paid lobbyists for
software publishers and by very few, usually unpaid, consumer
advocates (almost none of whom have software-related backgrounds).
Additionally, courses and industry seminars on software law are
typically taught by lawyers who represent software publishers
/ consultants. And speakers at conferences on software law are
typically lawyers who represent publishers. There are hundreds
of lawyers working for software sellers, but I can count the number
of lawyers who publicly advocate for software quality on one hand.
If legal drafting bodies and legislatures are going to deal
sensibly with the proposed laws to govern software quality, they
need input from people like us.
Third, we can provide inputwe are welcome to provide
inputas individuals and as professional societies. People
are hungry for our input. Non-lawyers can have a significant impact
on laws by addressing technological issues and explaining the
consequences of technology-related decisions. Software developers
and testers haven't been all that well received in the UCITA/Article
2B drafting committee meetings, but they have had big effects
elsewhere. For example, Bob Johnson is responsible for many significant
improvements to the Uniform Electronic Transactions Act. And,
even in the UCITA process, our comments have been effective in
slowing the process down and convincing decision-makers to consider
UCITA more carefully. ALI would probably have approved 2B/UCITA
if it wasn't for our many comments.
In my experience, regulatory agencies, such as the Federal
Trade Commission, are even more interested in our input than legislative
With particular reference to UCITA, we can do the following:
SOME ORGANIZATIONS THAT OPPOSE UCITA
- Write letters to the head of NCCUSL, Gene Lebrun, <GLebrun@LYNNJACKSON.COM>.
(Please send me a copy so that I can distribute them to the rest
of NCCUSL at the annual meeting in July, 1999. It is unlikely
that a letter to Gene will go further, and he strongly supports
- Write letters to the NCCUSL members in your state (contact
me, email@example.com, for their names, etc. or check my website,
- Write letters to your state legislators and state governor.
(This is a state law issue; members of Congress don't count.)
- Write letters describing defects that were badly handled
and examples of deceptive or dishonest or unfair conduct by software
publishers to Adam Cohn <ACOHN@FTC.GOV> of the Federal
Trade Commission. Adam will of course be interested in fully
detailed (names, dates, etc.) letters. You can also send him
a letter that deliberately disguises the people/companies/products,
that is sent to him only to educate him about the types of practices
in the industry. Tell him, in these letters, that this is what
you are doing and (if you want) tell him that I suggested that
he would find these educational-purposes-only letters useful.
These are valuable because the FTC is in an awkward position
regarding UCITA. Federal agencies rarely comment on state law,
but the authors of UCITA are making claims about the status and
content of consumer protection law in the USA, and the FTC has
significant expertise in this area. The FTC wrote one long letter
commenting on Article 2B (see www.ftc.gov/be/v980032.htm) but
has to decide whether to write another and which issues are important
- Write letters and op-ed articles for your local newspaper.
I can help you a bit with this.
- Encourage your professional societies (such as ASQ) to take
a stand and to write some letters of their own.
- fifty intellectual property law professors (www.2BGuide.com/docs/1198ml.html)
- American Association of Law Libraries (www.arl.org/info/letters/libltr.html
- American Library Association (www.arl.org/info/letters/libltr.html
- American Society of Media Photographers (www.nwu.org/pic/uccasmp.htm)
- Association for Computing Machinery (www.acm.org/usacm/copyright/usacm-ucc2b-1098.html)
- Association of Research Libraries (www.arl.org/info/letters/libltr.html
- Consumer Federation of America (www.cptech.org/ucc/sign-on.html)
- Consumer Project on Technology (Ralph Nader) (www.cptech.org/ucc/sign-on.html)
- Consumers Union (www.2BGuide.com/docs/cu1098.html)
- Independent Computer Consultants Association (unpublished)
- Institute for Electrical & Electronics Engineers (IEEE)
submitted specific criticisms of 2B but not final opposition.
See www.ieee.org/usab/FORUM/POLICY/98feb23.html and www.ieee.org/usab/FORUM/POLICY/98oct09.html.
- Magazine Publishers of America (www.2BGuide.com/docs/v9-98.pdf)
- Motion Picture Association of America (www.2BGuide.com/docs/v9-98.pdf
- National Association of Broadcasters (www.2BGuide.com/docs/v9-98.pdf)
- National Cable Television Association (www.2BGuide.com/docs/v9-98.pdf)
- National Consumer League (www.cptech.org/ucc/sign-on.html)
- National Music Publishers Association (unpublished)
- National Writers Union (www.nwu.org/pic/ucc1009a.htm)
- Newspaper Association of America (www.2BGuide.com/docs/v9-98.pdf)
- Recording Industry Association of America (www.2BGuide.com/docs/v9-98.pdf
- Sacramento Area Quality Association (unpublished)
- Society for Information Management (www.2BGuide.com/docs/simltr1098.html)
- software-test-discuss (this is the Nets largest e-mail
discussion forum on software quality control)
- Special Libraries Association (www.arl.org/info/letters/libltr.html
- United States Public Interest Research Group (www.cptech.org/ucc/sign-on.html).
Most of these letters are brief. After consultation with some
other consumer advocates, I submitted a detailed letter with
a section-by-section call for consumer-side revisions (www.badsoftware.com/kanerncc.htm).
The Society for Information Managements letter details
the concerns of large software customers (www.2BGuide.com/docs/simltr1098.html).
How UCITA Drives Down Failure
The total quality cost for a product is the sum of:
- prevention costs (cost of preventing defects) plus
- appraisal costs (such as cost of testing)
- plus internal failure costs (such as cost of fixing defects)
- plus external failure costs (costs caused by the defect after
the product is released to customers).
The external failure costs in this model are the costs of the
seller or manufacturer, not the costs of the customer. This model
ignores the customer's costs (Kaner, 1996).
Normally, the best way to reduce external failure costs is
to improve the product, especially by preventing defects or by
finding them early in development. However, a company can
reduce its external failure costs by handling them (e.g. customer
complaints or lawsuits) more efficiently.
UCITA provides another approachreduce external failure
I classify external failure costs into three categories:
- Customer support costs
- Legal costs.
- Lost sales (especially sales lost to competitors).
Note that the publisher doesn't reduce its customer's losses
by reducing these costs. In many cases, the publisher will save
money by increasing its customer's losses under UCITA.
Customer Support Costs
Here are some of the ways that UCITA lets publishers reduce
their technical support costs (without improving the product).
Citations are to the July, 1999 draft of UCITA:
- The publisher gets to charge customers for support, even
for known bugs. For example, if you buy a program for $50, the
publisher might charge you $3 per minute for a support call.
Suppose that you run into a (known) defect, call the publisher,
talk for 30 minutes ($90), realize that you're not getting anywhere,
and demand a refund. The publisher says OK, you send back the
product (at your expense), the publisher sends you $50 and keeps
your $90. It would have been much cheaper to throw the defective
product away. (Section 803(a)(1) or 803(c).)
- When the buyer rejects a defective product because of obvious
defects, the publisher can demand "a full and final statement
in a record of all defects on which the refusing party proposes
to rely." (Section 702(c)(2).) If there's a bug that you
don't find and report in response to this, you can't complain
about it when it bites you later. (But not even the publisher's
testing staff can find all the defects, so why should we expect
a customer to be able to create a full and final statement of
- A publisher's contract to support its software will not require
it to fix all defects. (Section 612(a)(1)(B).)
- In a contract dispute, the publisher can sometimes use "self-help"
to shut down the operation of the program without court approval.
- The publisher will have the same or (probably) greater power
to restrict customers right to maintain the publisher's
software or to contract for 3rd party support for the software.
. (This is achieved via contractual use restrictions on modification
or 3rd party use of the product, see Section 102(a)(20)
Here are some of the ways that UCITA lets the publisher reduce
its risk of legal liability for defective products, without making
the product less defective.
- All of the terms of the contract except the price can be
hidden from the customer until after the sale. By "hidden",
I mean that the customer has no way to obtain the terms until
after paying for the product. (Section 112, 210-213.)
- The implied warranty of merchantability (which provides that
products will be reasonably fit for ordinary use) will be trivially
easy to disclaim (to refuse to provide), and the disclaimer can
be hidden from the customer until after the sale. (Sections 112,
- By defining software transactions as licenses (which are
intangibles) instead of sales of copies of the software (Section
102(a)(42)), UCITA takes these transactions out of the scope
of the Magnuson-Moss Warranty Improvement Act and of state consumer
protection statutes that are based on sales of goods go away.
Consumers thereby lose warranty rights.
- It is much harder under UCITA than under current law (UCC
Article 2) to prove that a warranty was created by a demonstration
of a product. (Section 402(a)(3) and 402(b)(2)). A publisher
can more easily get away with making misleading product demonstrations
at trade shows.
- Business customers lose their right to reject a product for
obvious defects. (Section 704(b) restricts the centuries old
"perfect tender rule" to mass market contracts, repealing
it for the rest.)
- Except for mass-market software in the first day or so of
use, you cannot cancel the contract (and return the software)
unless there is a "material breach" (a very serious
defect or group of defects). (Section 601, 704(a), 802(a).) The
definition of material breach (Section 701) is more seller-friendly
than the current definition, as laid out in the Restatement
of Contracts. And finally, the publisher can specify that
you cannot cancel the contract even if there is a material breach.
- Even if it is proved that the product is defective and the
seller has materially breached the contract, the seller is liable
for almost no remedies (payments to the customer). For example,
the publisher doesn't have to reimburse callers for incidental
expenses (such as the cost of phone calls to the publisher or
of returning the product) or consequential losses (such as the
cost of restoring lost data) caused by the product's defect.
(Section 803(d).) UCITA eliminates the principle of the "minimum
adequate remedy" developed in UCC Article 2 (the current
law of sales, which governs contracts for packaged software today
-- See Reporter's Note 6 to Section 803: "This Act does
not give a court the right to invalidate a remedy limitation
because the court believes that the imitation does not afford
a "minimum adequate remedy" for the aggrieved party.").
- The publisher can easily set up a waiver of liability (you
"agree" to not sue the publisher for defects that you
have complained about) by including the waiver in the click-wrapped
"license" that comes with a bug-fix upgrade that the
publisher sends you. (Section 702(a).)
- The contract can specify what state or country's law will
govern this transaction and what court (in what country, state,
city) you have to go to in order to bring a suit against the
publisher. Forget about bringing a case in small claims court
against a publisher who sells you a defective consumer product.
Unless the software is very expensive, or the suit is brought
as a class action, you probably won't be able to afford to bring
such a lawsuit because of the added travel and legal research
expenses. Additionally, the publisher will probably have written
into the contract the state whose laws and courts are most favorable
to it. (Sections 109, 110, and many debates and resolutions during
the 2B drafting meetings.)
Lost Sales (Especially Sales Lost
- UCITA will let companies prohibit publication of criticisms
of their product. For example, with VirusScan, you get the restrictions,
"The customer shall not disclose the results of any benchmark
test to any third party without McAfee's prior written approval"
and "The customer will not publish reviews of the product
without prior consent from McAfee." These are restrictions
on disclosure. Section 102(b)(20) defines a "contractual
use restriction" as "an enforceable restriction created
by contract, which restriction concerns the use or disclosure
of, or access to licensed information or informational rights,
including a limitation on scope or manner of use." Therefore,
on their face, these terms are enforceable. Section 105 provides
some limitations on these clauses. A clause can be thrown out
if federal law specifies that it can be thrown out or if the
customer can jump through a remarkable set of litigation hoops
to prove that the clause violates a fundamental public policy
or if (Section 111) a judge rules that the clause is unconscionable.
These decisions are made on a case by case basis, so it will
probably take many years, many trials, and many appeals before
we have a clear understanding of which restrictions are enforceable
and which are not. In the meantime, publishers of defective products
will be able to intimidate people who can't afford to be sue,
by quoting their nondisclosure terms in their contracts and threatening
to sue if the person publishes a critical article. (Such threats
have been made.)
- UCITA will let publishers ban reverse engineering. This is
just another contractual use restriction (102(a)(20)). See the
discussion of these in the point above. There are many legitimate
reasons for doing reverse engineering, such as figuring out how
to make one product compatible with another, figuring out how
to work around the defects in a product, and figuring out how
to fix the product's defects. (See Kaner, 1998, for discussion
and a list of other examples.)
- Finally, by making it easy for publishers to hide the terms
of their contracts until after the sale is made, UCITA makes
it hard for customers to compare several types of terms. For
example, when you buy a program, do you know whether that publisher's
warranty is better than its competitors'? What does the publisher
charge for support, compared to its competitors? What are your
rights to arrange for 3rd party maintenance of the
product? Can you write critical reviews of it? These terms might
all affect your buying decision, but not if you can't find them
until after you've paid for the product.
I've focused this paper on UCITA's impact on software quality,
but UCITA has many other serious problems involving electronic
commerce and intellectual property rights. If you want details,
or if you can offer some help, please write me (firstname.lastname@example.org).
Braucher, J. (1999) "Why UCITA, Like UCC Article 2B, is
Premature and Unsound", forthcoming in the UCC Bulletin,
July 1999. Available at http://www.2BGuide.com/docs/0499jb.html.
Kaner, C. (1996), "Quality cost analysis: Benefits and
risks", Software QA, Volume 3, #1, p. 23, www.kaner.com/qualcost.htm.
Kaner, C.(1998), "Article 2B and reverse engineering",
UCC Bulletin, November, p. 1, ww.badsoftware.com/reversea.htm.
See also "The problem of reverse engineering", Software
The articles at this web site are not legal advice. They do
not establish a lawyer/client relationship between me and you.
I took care to ensure that they were well researched at the time
that I wrote them, but the law changes quickly. By the time you
read this material, it may be out of date. Also, the laws of the
different States are not the same. These discussions might not
apply to your circumstances. Please do not take legal action on
the basis of what you read here, without consulting your own attorney.
Questions or problems regarding this web site should be directed
to Cem Kaner, email@example.com.
Last modified: July 25, 1999. Copyright © 1999, Cem Kaner.
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