Slide 9 of 25 -- Scroll down for more text

UCITA replaces Article 2 with rules that are more seller friendly:

• Publishers can charge customers for support. They can do that today, but under current law, the customer sometimes has a right to reimbursement of "incidental expenses" that are caused by a defect. Calling to report the defect is an example of an incidental expense. Under Article 2, contracts can say that the seller will never reimburse incidental expenses, but a court can reject this if the customer didn't know about the restriction before the sale or if the charge is unreasonable under the circumstances. The judge is instructed to give a customer a "minimum adequate remedy" in the face of a true breach of contract. UCITA fixes this for publishers, makes remedy exclusions fully enforceable, and rejects the notion of the minimum adequate remedy. Under UCITA, if I sell you a computer game for $50 that has a known defect that gives you a problem installing it, I can charge you $5 a minute for telephone support. If you give up after 20 minutes, having spent $100 on the call, you can get a refund all right. You send me back the program, I send you back $50, but I keep your $100. I don't know of any other American law that allows sellers to profit from their known
• UCITA reverses a century-long rule that says that if you refuse to stand behind your product - if you won't at least warrant that it is reasonably fit for ordinary use, which is the warranty of merchantability - then you have to warn people before the sale. Instead, software publishers can hide this contract term inside the box, refuse to let you see the contract until after the sale, and still have the disclaimer, and many other harsh terms, be enforceable against you.
• We lose other consumer protections too. The federal Magnuson-Moss Act and several state-level consumer protection laws apply to software today, but they won't under UCITA. The trick is that these laws apply to sales of goods. Under UCITA, when you go to the store and buy a computer program, you are no longer buying goods. You're buying a right to use the software. This right, this license, is an intangible, not goods. Therefore the laws written specifically for goods no longer apply. The proponents of UCITA get to say that UCITA doesn't change a single consumer protection statute. With respect to Mag Moss and others, the proponents are correct but in an very careful way. The rules are still there, software customers just no longer get the benefit of them.