UPDATED: Richard Stallman — Why We Must Fight UCITA

By Richard Stallman

(Updated with Richard Stallman’s responses to selected
readers’ comments.)

UCITA is a proposed law, designed by the proprietary software
developers, who are now asking all 50 states of the US to adopt it.
If UCITA is adopted, it will threaten the free software
community(1) with disaster. To understand why, please read on.

We generally believe that big companies ought to be held to a
strict standard of liability to their customers, because they can
afford it and because it will keep them honest. On the other hand,
individuals, amateurs, and good samaritans should be treated more
favorably.

UCITA does exactly the opposite. It makes individuals, amateurs,
and good samaritans liable, but not big companies.

You see, UCITA says that by default a software developer or
distributor is completely liable for flaws in a program; but it
also allows a shrink-wrap license to override the default.
Sophisticated software companies that make proprietary software
will use shrink-wrap licenses to avoid liability entirely. But
amateurs, and self-employed contractors who develop software for
others, will be often be shafted because they didn’t know about
this problem. And we free software developers won’t have any
reliable way to avoid the problem.

What could we do about this? We could try to change our licenses
to avoid it. But since we don’t use shrink-wrap licenses, we cannot
override the UCITA default. Perhaps we can prohibit distribution in
the states that adopt UCITA. That might solve the problem–for the
software we release in the future. But we can’t do this
retroactively for software we have already released. Those versions
are already available, people are already licensed to distribute
them in these states–and when they do so, under UCITA, they would
make us liable. We are powerless to change this situation by
changing our licenses now; we will have to make complex legal
arguments that may or may not work.

UCITA has another indirect consequence that would hamstring free
software development in the long term — it gives proprietary
software developers the power to prohibit reverse engineering. This
would make it easy for them to establish secret file formats and
protocols, which there would be no lawful way for us to figure
out.

That could be a disastrous obstacle for development of free
software that can serve users’ practical needs, because
communicating with users of non-free software is one of those
needs. Many users today feel that they must run Windows, simply so
they can read and write files in Word format. Microsoft’s
“Halloween documents” announced a plan to use secret formats and
protocols as a weapon to obstruct the development of the GNU/Linux
system(2).

Precisely this kind of restriction is now being used in Norway
to prosecute 16-year-old Jon Johansen, who figured out the format
of DVDs to make it possible to write free software to play them on
free operating systems. (The Electronic Frontier Foundation is
helping with his defense; see http://www.eff.org/ for further
information.)

Some friends of free software have argued that UCITA would
benefit our community, by making non-free software intolerably
restrictive, and thus driving users to us. Realistically speaking,
this is unlikely, because it assumes that proprietary software
developers will act against their own interests. They may be greedy
and ruthless, but they are not stupid.

Proprietary software developers intend to use the additional
power UCITA would give them to increase their profits. Rather than
using this power at full throttle all the time, they will make an
effort to find the most profitable way to use it. Those
applications of UCITA power that make users stop buying will be
abandoned; those that most users tolerate will become the norm.
UCITA will not help us.

UCITA does not apply only to software. It applies to any sort of
computer-readable information. Even if you use only free software,
you are likely to read articles on your computer, and access data
bases. UCITA will allow the publishers to impose the most
outrageous restrictions on you. They could change the license
retroactively at any time, and force you to delete the material if
you don’t accept the change. They could even prohibit you from
describing what you see as flaws in the material.

This is too outrageous an injustice to wish on anyone, even if
it would indirectly benefit a good cause. As ethical beings, we
must not favor the infliction of hardship and injustice on others
on the grounds that it will drive them to join our cause. We must
not be Machiavellian. The point of free software is concern for
each other.

Our only smart plan, our only ethical plan, is…to defeat
UCITA!

If you want to help the fight against UCITA, by meeting with
state legislators in your state, send mail to Skip Lockwood
dfc@dfc.org. He can tell you how
to contriute effectively.

Volunteers are needed most urgently in Virgina and Maryland, but
California and Oklahoma are coming soon. There will probably be a
battle in every state sooner or later.

For more information about UCITA, see www.4cite.org and www.badsoftware.com. InfoWorld
magazine is also helping to fight against UCITA; see
http://archive.infoworld.com/cgi-bin/displayStory.pl?/
features/990531ucita_home.htm

Copyright 2000 Richard Stallman
Verbatim copying, distribution and display of this entire article
are permitted in any medium provided this notice is preserved.

---

(1) Other people have been using the term “open source” to
describe a similar category of software. I use the term “free
software” to show that the Free Software Movement stll exists–that
the Open Source Movement has not replaced or absorbed us.

If you value your freedom as well as your convenience, I suggest
you use the term “free software”, not “open source”, to describe
your own work, so as to stand up clearly for your values.

If you value accuracy, please use the term “free software”, not
“open source”, to describe the work of the Free Software Movement.
The GNU operating system, its GNU/Linux variant, the many GNU
software packages, and the GNU GPL, are all primarily the work of
the Free Software Movement. The supporters of the Open Source
Movement have the right to promote their views, but they should not
do so on the basis of our achievements.

See http://www.gnu.org/philosophy/free-software-for-freedom.html
for more explanation.

(2) The system is often called “Linux”, but properly speaking
Linux is actually the kernel, one major component of the system
(see http://www.gnu.org/gnu/linux-and-gnu.html).

---

Richard Stallman’s responses to readers’ comments

Shane Simmons:
Subject: Off subject-free & open source (Feb 4, 2000, 02:28:51
)
Quite frankly, GNU software’s source is open. Hmm…it’s open
source. Open source is essentially a blanket term encompassing not
only free (speech, not beer) software, but software that’s under
licenses other than GNU’s GPL.

6 Feb 2000 06:42:38 -0700 (MST)

This seems to be a misunderstanding: “free software” does not
mean “released under the GNU GPL.” Free software means users have
certain freedoms–freedom to make changes, freedom to redistibute
copies, and freedom to publish improved versions. This necessitates
access to the source code. See http://www.gnu.org/philosophy/free-sw.html
for the full definition.

The GNU GPL is one example of a free software license, but there
are many others. Free software licenses include the X11 license,
the old and new BSD licenses, the LGPL, the NPL, and even the QPL.
See http://www.gnu.org/philosophy/license-list.html
for a list of some licenses and whether they do or don’t qualify as
free software licenses.

The term “open source” is also the subject of widespread
confusion. Most people seem to think it means “the source is
available”, but its official definition is much closer to the
definition of free software than to that.

---

Grampa:
Subject: Grandfather’d rights? (Feb 2, 2000, 16:53:16 )
IANAL, but isn’t there a grandfather clause that says preexisting
conditions (software) are exempted from new laws?

6 Feb 2000 06:42:40 -0700 (MST)

Yes, but the consequences are quite what you think.

If UCITA is passed, it would not apply to old *transactions*
which took place before. Thus, it would not apply to copies of
Microsoft programs that were sold previously. UCITA would apply
only to new transactions.

The problem for us is that when someone redistributes an
existing free software package, that counts as a new transaction,
regardless of the fact that the publication of the software
occurred before UCITA.

We can try to argue, if necessary, that the situation should be
treated differently because the program was published earlier. This
argument might persuade a court, but we cannot assume it will.

---

Dave Bennett:
Subject: Shrinkwrap agreements are normal (Feb 2, 2000, 14:45:55
)
The fight against shrinkwrap, or click-wrap licenses is
interesting. I have been following the action.

6 Feb 2000 06:42:42 -0700 (MST)

The history of UCITA *so far* is that the software companies
have pushed their demands through despite opposition from most of
the participants in the process. They know what will profit them,
and they are very persistent.

However it is only now that the process has reached any elected
representatives of the public. At this point there is a *chance*
for the public to stop it. But if we are to stop it, we must not
look for excuses for inaction.

For example, even if UCITA were quite similar to some existing
problems (which it isn’t really), what difference would that make?
Very little! Suppose you have lost four fingers; would you be
content to lose another finger “because it is not a new kind of
problem”? Of course not–that’s the wrong way to look at the
question.

Relying on the First Amendment is another excuse for inaction.
Maybe the Supreme Court will rule that the use of UCITA to prohibit
publishing information about bugs is unconstitutional, but we can’t
be sure of that. And even if they do, it won’t get rid of the rest
of UCITA.

Noting that many companies are against UCITA can also be an
excuse, if you assume they will block UCITA on their own. It is
good that many companies are on our side, but we cannot count on
them to win this battle without us. So inform the management of the
company you work for about UCITA and what it can do to them; then
talk to your state legislators.

Defeatism is another excuse. There is nothing more ridiculous
than a whole countryful of people saying, “I hate what is
happening, but my countrymen are not going to bother to resist it,
so it is no use for me to try”–each one pointing to the others as
his excuse.

Don’t be someone else’s excuse! Send mail to dfc@dfc.org, and arrange to talk with the
legislators in your state. According to the LA Times, Illinois is
also likely to consider UCITA soon, in addition to Virginia,
Maryland, Oklahoma, and California. If you don’t live in those
states, pick a few friends who do and talk with them about the
issue.

---

Rob Johnson:
Subject: UCITA letter (Feb 2, 2000, 04:33:37 )
I am writing to oppose the adoption of UCITA as it currently
stands. This law regulating the rights of software purchasers will
impact consumers very negatively: 1) Digital copies of books,
movies, etc., will not be the property of the consumer as their
physical counterparts are.

6 Feb 2000 06:42:46 -0700 (MST)

Cem Kaner showed me that movies are specifically exempted from
UCITA. Other than that, it is a good letter. I think dfc@dfc.org can tell you who to send it to
with greatest effect. In the mean time, sending it to your own
state legistators, state attorney general, and governor can’t hurt,
no matter what state you live in.

---

Eduardo Silva:
Subject: Anything people from other countries cand do? (Feb 1,
2000, 16:38:46 )
Is there anything people from other countries do to help fight the
UCITA? If so, tell us.

6 Feb 2000 06:42:48 -0700 (MST)

Talking with a few people you know well in the US, to make them
aware of the problem and encourage them to act, is useful.

Aside from that, you can start preparing to take action to
prevent similar laws from being passed in your own country. The
same software companies will surely push for it, and they will
probably have the help of the US government. You can use UCITA as
an example of what people can expect.