Dear Representative ???,
Let me introduce myself, my name is David Demland. I have been a = software=20 engineer for almost 14 years. Today I hold the title of Quality = Assurance, QA,=20 Manager. I am currently working at a software company in Phoenix. Not = only do I=20 work in the field but I also teach software engineering type courses at = the=20 university level. To help easy an incredible desire to learn I am also = pursuing=20 a masters degree in Computer Information Systems, CIS. Not only do I = consider=20 myself an expert in software development but my peers reinforce this by = asking=20 me to give presentations and advice to local companies that are trying = to change=20 the way they produce software and the quality of their products. When it = comes=20 to software I speak from experience and from an attitude of always = rasing the=20 bar of quality for software products. With this said I want it to be = clear that=20 I am addressing you as a very knowledgeable person from the software = industry,=20 an expert if you would.
The reason for this letter is to address my concerns that HB2041, = also known=20 as UCITA. I would like to make it clear from the start, this bill is bad = for the=20 software industry as a whole and it is almost as dreadful for the = consumer as=20 the depression. I submit the following information as reasons to why = this bill=20 should die and never be resurrected in the future.
Before we can look at the bill itself we will take a look at how the=20 professional originations stand in regards to UCITA. The Association for = Computing Machinery, ACM, is an origination that was founded in 1947. It = was the=20 first educational and scientific computer society in the world (ACM). = ACM is=20 comprised of over 80,000 members in the computer industry today. They do = not=20 support UCITA. The Institute for Electrical and Electronic Engineers, = IEEE,=20 known for the standards they have produced for the computer industry = which has=20 lead very high levels of interoperability of systems. IEEE consist of = 366,135=20 members in the computer industry today. They to do not support UCITA = (IEEE). The=20 America Society for Quality, ASQ, is the quality related side of = business, does=20 not support UCITA (ASQ). The Software Engineering Institute, SEI, which = was=20 established by the Department Of Defense, DOD, to help the industry = improve=20 software development practices does not support UCITA (SEI). Is it = becoming=20 clear that the professionals in the industry do not support UCITA.
If these are not enough, there are lawyers and law colleges that = oppose=20 UCITA. The University of Arizona James E. Rogers College of Law, has = published a=20 paper on why UCITA should be opposed (UofA). American Library = Association, ALA,=20 does not support UCITA (ALA). The American Association of Law Libraries, = AALL,=20 does not support UCITA (AALL). Cem Kaner, a former software engineer and = now=20 lawyer, has a wealth of information about UCITA from both a technical = side and=20 the consumer side does not support UCITA = (Kaner).
Looking at just these oppositions, this bill maybe should not have = even been=20 introduced. If this bill dealt with the medical profession, and it had = this kind=20 of opposition, would the opinions of the medical profession originations = be=20 overlooked, or glazed over? Or would these originations carry weight = with their=20 opinions? I would hope that these computer and law originations would = carry some=20 weight when it comes to UCITA. Just remember that Microsoft, Oracle, = Adobe, and=20 Intel - all of which have worked on and supported UCITA, have one group = they=20 answer to. That is their shareholders. The consumer, = at times,=20 is a necessary evil they have to live with, the customer is not who they = have to=20 server first.
With this said I would like to look at parts of the bill = directly.
44-7202
Item 19, in this section, can be used to strip freedom of speech when = it=20 comes to a software product. The terms "contractual use restriction" is = defined=20 as "an enforceable term that defines or limits the use, disclosure of, = or access=20 to licensed information or informational rights, including a term that = defines=20 the scope of a license". In 44-7307 it states "If a license expressly = limits use=20 of the information or informational rights, use in any other manner is a = breach=20 of contract". How do you justify to the consumer that open and = honest=20 software product reviews will no longer be allowed after software = development=20 companies put into their license that no information may be published = about=20 their software without their approval? I would hope that no one is naive = enough=20 to think that a software development company would allow bad review of = their=20 product to be published. Just think what would happen if a company can = keep=20 someone from publishing a bad report on it’s product. Where does = this leave the=20 consumer?
44-7265
This section makes it so that no one can filter their E-Mail any = more. This=20 section says that even if a consumer does not know they have received an = E-Mail=20 from a publisher they are assumed to have received it. This means that = if there=20 is any E-Mail filtering to keep junk mail, pornography, and any other = unwanted=20 E-Mail it will have to be turned off. This is just so a consumer does = not miss a=20 change in the contract agreement from a software publisher. How do you = tell=20 parents that their children will have to sort through all this E-Mail = just so=20 the changes made in the software agreement, after the software has = purchased, is=20 not missed? Are parents expected to go through all E-Mail or allow = children to=20 go through pornography E-Mail? What is the choice here?
44-7351
This section will allow post-sale disclaimer to be enforceable. This = is a=20 novel idea. What about buy a car without being able to test drive it but = it is=20 sold "as is". I do not know many people who would buy anything without = seeing it=20 first, but now we are being told that it can happen in software and the = consumer=20 can not return it for any reason. What will be next? Am I the = only one=20 here to find this a very big problem? Who would have ever thought of = this as=20 something the consumer needs? It is not just the = opposite of=20 what needs to be done to protect the consumer?
44-7352
This section allows software development companies to demonstrate a = differ=20 product than what is shipped to the consumer. Under this section a = software=20 development company can show a "Demo" version and ship the consumer the = shipping=20 version that may not have all the features that was shown to the = consumer. Are=20 we going to make the "Bait and switch" legal now? Where is this in the=20 consumer’s best interest?
44-7403
This section allow software development companies to restrict = transfer of=20 software. Now this may sound good at first but look at these impacts. = This goes=20 far beyond copyright law. Under current conditions if a user removes the = software from their computer they may give the software to someone else. = This=20 section removes that. This means that a when a family is done with an=20 encyclopedia, that is on CD, it can not give it to a school for use. Are = we=20 saying that schools do not need these gifts any more, or that the state = will=20 supply them at full cost instead of allowing parents to get involved = with the=20 school?
An other problem with this is that there will be no way used = bookstores and=20 record stores can sell used software. How do we tell the used software=20 businesses in Arizona that you will have to close up and do something = else? I=20 have seen these businesses in Phoenix and Tucson so who will be the one = to have=20 to tell them that they are going to have to close down? The ones I have = seen=20 seem to be small family businesses. Do we really want to say to these=20 businesses, and the world, that Arizona will support only big business = and=20 forget the small business that we have been built on? Are we ready to = say that=20 part of the American dream is dead?
44-7501
This section will allow a material breach of contract to be = determined by a=20 software development company. Do I have to go to far here? Who will = protect the=20 consumer? Are we saying that software development companies are going to = be fair=20 to the consumer when it come to this subject? Again I ask: who is the = software=20 development company held accounted to?
44-7565 and 44-7566
These sections allow a software publisher to place a "back door" into = their=20 software that may be used to disable the software remotely. I know this = may not=20 sound to bad at first but lets put it into a little different terms. = What if you=20 bough a car for $18,000.00 and two years later the manufacture did not = want to=20 support it any longer and the manufacture disabled the car from running = and the=20 only thing you could do is to buy the newer model that now is = $22,000.00. The=20 car manufacture’s job became easy because they no longer have to = have long=20 warranties, nor would they have to have extend time periods of making = parts or=20 many other things. Why should a consumer be required to upgrade a piece = of=20 software that meets their needs just because the development company no = longer=20 wants to support that software and wants the consumer to pay more money = just to=20 benefit the development company? What is the difference?
The second issue here is security. Just this past week it was = reported that=20 "hacker" had stolen top secret U.S. Space code. This is from a very high = secured=20 computer system. What happens to security on a desktop computer when = these back=20 doors are put into every piece of software? How does the consumer = protect=20 themselves from a security problem just because an irate engineer leaves = a=20 company and wants to get even? What if the engineer worked on Microsoft = Money=20 and used this back door to get personal information? It has been = reported on the=20 news that with just a Social Security Number, address, and a credit card = number=20 someone’s identity may be stolen. How do we protect the = public’s privacy?
Just in closing I would like to make it clear, UCITA is just plain =
bad law.=20
With the number of professional originations that are against UCITA it =
would=20
seem that the practitioners are say stop before we do something really =
stupid.=20
Now is the time to act. Kill UCITA before it has a chance to hurt the =
Thank You,
David Demland
3506 E. Glenrosa
Phoenix, AZ 85018
(602) 955-3248
References
ACM - Association for Computing Machinery [On-line] Available:=20 http://info.acm.org
IEEE - Electrical and Electronic Engineers [On-line] Available:=20 http://www.ieeeusa.org/forum/ POSITIONS/ucita.html
ASQ - America Society for Quality [On-line] Available:=20 http://sqp.asq.org/vol1_issue4/ sqp_v1i4_kaner.html
SEI - Software Engineering Institute [On-line] Available:=20 http://www.badsoftware.com/sei.htm
UofA - University of Arizona [On-line] Available:=20 http://www.ala.org/washoff/ucita/ braucher.html
ALA - American Library Association [On-line] Available:=20 http://www.ala.org/washoff/ucita/
AALL - American Association of Law Libraries [On-line] Available: = http://=20 www.ll.georgetown.edu/aallwash/so101399.html
Cem Kaner - Bad software [On-line] Available:=20 http://www.badsoftware.com/