Dear Representative Tully,
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=20
I 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 a masters degree in Computer Information Systems, CIS. Not =
only do I=20
consider myself an expert in software development but my peers =
reinforce this=20
by asking me to give presentations and advice to local companies that =
are=20
trying to change the way they produce software and the quality of =
their=20
products. When it comes to software I speak from experience and from =
an=20
attitude of always rasing the bar of quality for software products. =
With this=20
said I want it to be clear that I am addressing you as a very =
knowledgeable=20
person from the software industry, an expert if you would.
The reason for this letter is to address my concerns that HB2041, =
also=20
known as UCITA. I would like to make it clear from the start, this =
bill is bad=20
for the software industry as a whole and it is almost as dreadful for =
the=20
consumer as the depression. I submit the following information as =
reasons to=20
why this bill 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=20
Computing Machinery, ACM, is an origination that was founded in 1947. =
It was=20
the first educational and scientific computer society in the world =
(ACM). ACM=20
is comprised of over 80,000 members in the computer industry today. =
They do=20
not support UCITA. The Institute for Electrical and Electronic =
Engineers,=20
IEEE, known for the standards they have produced for the computer =
industry=20
which has lead very high levels of interoperability of systems. IEEE =
consist=20
of 366,135 members in the computer industry today. They to do not =
support=20
UCITA (IEEE). The America Society for Quality, ASQ, is the quality =
related=20
side of business, does not support UCITA (ASQ). The Software =
Engineering=20
Institute, SEI, which was established by the Department Of Defense, =
DOD, to=20
help the industry improve software development practices does not =
support=20
UCITA (SEI). Is it becoming clear that the professionals in the =
industry do=20
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=20
a paper on why UCITA should be opposed (UofA). American Library =
Association,=20
ALA, does not support UCITA (ALA). The American Association of Law =
Libraries,=20
AALL, does not support UCITA (AALL). Cem Kaner, a former software =
engineer and=20
now lawyer, has a wealth of information about UCITA from both a =
technical side=20
and the consumer side does not support UCITA =
(Kaner).
Looking at just these oppositions, this bill maybe should not have =
even=20
been introduced. If this bill dealt with the medical profession, and =
it had=20
this kind of opposition, would the opinions of the medical profession=20
originations be overlooked, or glazed over? Or would these =
originations carry=20
weight with their opinions? I would hope that these computer and law=20
originations would carry some weight when it comes to UCITA. Just =
remember=20
that Microsoft, Oracle, Adobe, and Intel - all of which have worked on =
and=20
supported UCITA, have one group they answer to. That is their =
shareholders.=20
The consumer, at times, is a necessary evil they =
have to live=20
with, the customer is not who they have to 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=20
defined as "an enforceable term that defines or limits the use, =
disclosure of,=20
or access to licensed information or informational rights, including a =
term=20
that defines the scope of a license". In 44-7307 it states "If a =
license=20
expressly limits use of the information or informational rights, use =
in any=20
other manner is a breach of contract". How do you justify to the=20
consumer
that open and honest =
software=20
product reviews will no longer be allowed after software development =
companies=20
put into their license that no information may be published about =
their=20
software without their approval? I would hope that no one is naive =
enough to=20
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=20
the 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=20
E-Mail from a publisher they are assumed to have received it. This =
means that=20
if there is any E-Mail filtering to keep junk mail, pornography, and =
any other=20
unwanted E-Mail it will have to be turned off. This is just so a =
consumer does=20
not miss a change in the contract agreement from a software publisher. =
How do=20
you tell parents that their children will have to sort through all =
this E-Mail=20
just so the changes made in the software agreement, after the software =
has=20
purchased, is not missed? Are parents expected to go through all =
E-Mail or=20
allow children to 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=20
it first, but now we are being told that it can happen in software and =
the=20
consumer can not return it for any reason
.=20
What will be next? Am I the only one here to find this a very big =
problem? Who=20
would have ever thought of this as something the consumer needs? It is not just the opposite of what needs =
to be=20
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=20
shipping version that may not have all the features that was shown to =
the=20
consumer. Are we going to make the "Bait and switch" legal now? Where =
is this=20
in the 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=20
goes far beyond copyright law. Under current conditions if a user =
removes the=20
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 =
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=20
have to tell them that they are going to have to close down? The ones =
I have=20
seen 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=20
the consumer? Are we saying that software development companies are =
going to=20
be fair to the consumer when it come to this subject? Again I ask: who =
is the=20
software 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=20
not sound to bad at first but lets put it into a little different =
terms. What=20
if you bough a car for $18,000.00 and two years later the manufacture =
did not=20
want to support it any longer and the manufacture disabled the car =
from=20
running and the only thing you could do is to buy the newer model that =
now is=20
$22,000.00. The car manufacture’s job became easy because they =
no longer have=20
to have long warranties, nor would they have to have extend time =
periods of=20
making parts or many other things. Why should a consumer be required =
to=20
upgrade a piece of software that meets their needs just because the=20
development company no longer wants to support that software and wants =
the=20
consumer to pay more money just to benefit the development company? =
What is=20
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=20
secured computer system. What happens to security on a desktop =
computer when=20
these back doors are put into every piece of software? How does the=20
consumer protect themselves from =
a=20
security problem just because an irate engineer leaves a company and =
wants to=20
get even? What if the engineer worked on Microsoft Money and used this =
back=20
door to get personal information? It has been reported on the news =
that with=20
just a Social Security Number, address, and a credit card number =
someone’s=20
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 =
consumer. We will all live better without it. I =
would also=20
like you to ask yourself the next time someone says that UCITA is =
good, ask=20
who are they accountable to a company or the consumer.
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/