November 20, 1998
Carlyle C. Ring, Jr., Esquire
Chairman, NCCUSL Article 2B Drafting Committee
Ober, Kaler, Grimes & Shriver
1401 H St., NW - Fifth Floor
Washington, DC 20005
Professor Geoffrey Hazard, Jr.
Director, American Law Institute
4025 Chestnut Street
Philadelphia, PA 19104-3099
Dear Mr. Ring and Professor Hazard:
This is an unusual letter, in unusual circumstances. It is an unusual letter because it represents the consensus of the software testers and other professionals who participate in the "swtest-discuss" mailing list. This Internet mailing list has been in operation since 1995 and now has more than 400 participants across the globe. The interaction that is possible on the mailing list has given us the opportunity to discuss the content of this letter, and in leading the consensus building process, I was surprised to see very strong and consistent support of the message I am presenting to you, and not a single dissenting opinion. You may learn more about this mailing list by sending the command "info swtest-discuss" in the body of an email message to email@example.com. The opinions of the list participants do not necessarily reflect the opinions or policies of the company that hosts the list. This letter represents the grass-roots interests of professionals across many companies and industries.
What makes the circumstances unusual is the content of the proposed Article 2B amendment to the Uniform Commercial Code which is in the final stages of development. As professionals, educators, and managers who work with various aspects of software quality, we often play the role of customer advocates in our day to day work. Many of us provide data to managers that will help them make difficult decisions about shipping products with known defects. We fear that the proposed Article 2B will make it far more difficult for us to continue to be effective in our role as customer advocates.
We have seen the ludicrous sales contract modifications that many software publishers hide inside their software packages, including disclaimers of both express and implied warranties, forum selection clauses that exploit consumers, and even limits on consumers' free speech in reviewing the product. We were relieved when we learned that these hidden modifications are not likely to be enforceable in the current legal system, but we are now very concerned that Article 2B will in fact make these shrink-wrapped disclaimers enforceable. On top of that, it will allow the disclaimers and other modifications to stay hidden during the time that the customer makes a final purchase decision. If customers have a problem with the software, they will place the software on a shelf, believing that it cannot be returned, or return the software for a refund and still be faced with finding a product that meets their needs under reasonable terms. You are setting the terms under which they will be able to buy the software that they depend on, as well as the least common denominator that is the basis for the competitive efforts of our companies.
We want to work toward a standard of quality and customer service that is similar to other consumer goods. If companies are allowed to lower their standards by: disclaiming warranties that consumers depend on for other kinds of products, avoiding remedies when they release products with known, undocumented defects, and by avoiding responsibility in other ways for satisfying the legitimate expectations of our customers, our difficult quest for quality becomes even more difficult. And if our competitors are allowed to get to market earlier with lower quality standards and a lower standard of service, our companies may have no choice but to follow suit. This could affect the entire software industry by raising support costs for software vendors and reducing customer confidence in new software even lower than it is now.
We have followed the continued efforts of those who have tried to rectify the problems in the proposed Article 2B, and we had hoped that reason would prevail. Unfortunately, we have seen that these efforts have not been effective at fixing the problems with the proposed article. We sincerely appreciate the effort that the committee has put forth for this badly needed update to our legal system. But we do not believe that the problems in the current proposal can be rectified, and therefore we must request that Article 2B be tabled.
Thank you for your consideration.
Danny R. Faught
Co-founder of the swtest-discuss mailing list
on behalf of the 408 participants of swtest-discuss