I agree
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also I seem to remember that when I subscribed to, oh, The New Yorker, I sent in some money and eventually the magazine started arriving in my mailbox. Not so simple in the digital era. The other day I used my computer to subscribe to Slate, an on-line magazine owned by Microsoft, and after I gave up my name, E-mail address, postal address, credit-card number, and choice of gift (I declined the free umbrella), the screen presented me with the first few lines of a 2,000-word contract. Below this was a button marked "I Agree." There was also a button marked "Cancel." I looked in vain for a button marked "Let's Negotiate—My Lawyer Will Be in Touch with Your Lawyer."
   I realize now that before you read any further we should agree on some ground rules.
   First of all, by reading Fast Forward you confirm your acceptance of, and agree to be bound by, and promise never to call your lawyer to make light remarks about, this Agreement.
   Further, you're not buying a car or a toaster here. This department makes no express or implied representations or warranties to you regarding the usability, condition, or operation thereof. We do not warrant that access or use will be uninterrupted or error-free or that we will meet any particular criteria of performance or quality. No matter how bad the product is, it's your problem, not ours.
   And after all this, if you think you've found a loophole and actually wish to sue, start by calling your travel agent, because you consent to the exclusive jurisdiction and venue of courts in King County, Wash. Oh, no, wait—that's Microsoft.
   "Yes, it's absurd," says Michael Kinsley, Slate's editor. But no more absurd, he adds, than agreements at other sites. (Sure enough, The New York Times has a long contract for its own on-line subscribers.) Internet magazines are more complicated, interactive, and bug-prone than their print ancestors and thus require, in a litigious world, more complicated legal armor. You aren't really expected to understand it. "The entire software industry, for that matter, depends on its customers not really reading these things before clicking 'I accept,'" Kinsley says.
   The software industry also relies on a clever legal twist: the notion that consumers are entering into ongoing licensing agreements with the manufacturers. You may think, as you walk out of a store, package under your arm, that you have bought that software. The industry claims that you have merely licensed certain limited rights to use it. It says so right there in the agreement you will find under the shrinkwrap and toss away unread.
   As a licensee, you commit yourself to a set of continuing duties. In the case of Slate, for example, you agree to supervise any usage by minors and to notify Microsoft "promptly"—even though you've already paid—if you change your billing address, lose your credit card or "become aware of a potential breach of security." Kinsley says he persuaded the lawyers to drop a clause that would have required all his readers to maintain their computer equipment in working order.

Are all these shrinkwrap and "clickwrap" agreements really enforceable? After all, the manufacturers know perfectly well that customers have neither the time nor the expertise to read them, and often the agreements are hidden in boxes until well after the customers have paid up. No one knows for sure. In real life, manufacturers almost never try to enforce the sillier terms, and most of the damages people suffer from defective software tend to be in the nature of lost time—hours spent cursing the computer or waiting on hold for technical support—and it's hard to sue over that.
   Steve Tapia, a Microsoft corporate attorney, says it just wouldn't be fair to hold software to the same standards as, say, a car. That's lucky for him, because car makers have found it very expensive to sell cars with defects—especially defects they knew about. They can't just disclaim any obligation to guarantee their products. Software is different, Tapia says, "because personal computer software may be used for a myriad of different purposes on an infinite amount of hardware combinations."
   In the early days of personal computers, users were mostly technical types willing to wrestle with flawed software. They forgave some of the bugs, in versions 1.0, anyway. Now that computers are a mass-market product, they reach more naïve customers who might actually expect their software to work. That must be why dozens of companies feel compelled to make users agree that they're on their own if they use the products in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or aircraft communication systems, air traffic control, direct life support machines, or weapons systems, in which failure of the software could lead to death, personal injury, or severe physical or environmental damage.
   Some legal departments have been getting more creative lately. Customers who download Network Associates' antivirus software "agree"—click—to clauses designed to give the company control of press coverage: "The customer shall not disclose the results of any benchmark test to any third party without Network Associates' prior written approval"; and "the customer will not publish reviews of the product without prior consent."
   Meanwhile, the agreement that comes with Microsoft Agent, software that lets people create cute interactive animated figures, holds that you may not use the characters "to disparage Microsoft, its products or services." Will the next version of Microsoft's operating system have a clause like that? I'll have to find a typewriter?
   Perhaps some of these contract terms are striding defiantly past the limits of existing law—but the law is likely to change shortly, in all 50 states. A major revision is under way in the foundation of American commercial law, the Uniform Commercial Code. The drafters, a committee of lawyers established for the purpose, have created a new statute, Article 2B, specifically to cover software and other information products. To the horror of some consumer groups, the current draft ratifies the most aggressive provisions of today's software licenses.
   It would set into law the idea that software customers aren't buying "goods" but merely licensing certain rights. It makes the licenses binding even when customers have not read them, when the customers casually clicked an on-line button, and when the customers could not have seen the agreements until after buying the products.
   The draft legitimizes confidentiality and nondisclosure clauses like Network Associates', forbidding users to publish reviews of a product. And it would explicitly allow manufacturers to disclaim warranties; it even suggests language: "this [information] [computer program] is being provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user."
   "It's the drafting committee's view that bugs are inevitable in software and that makes software different," says Cem Kaner, a lawyer and software consultant opposing these provisions. He argues that Article 2B in its present form will be a disaster not only for consumers but also for the more honorable software companies; it will reward companies that try to grab market share by rushing to market with buggy software.
   "If there are no refund rights, no lawsuit rights, no legal disincentives, then companies that ship prematurely enjoy an unfair advantage," Kaner says. "In the process of protecting the worst companies from the consequences of their worst products, we pressure better companies to do a worse job."

Copyright 1998 James Gleick
First published in the New York Times Magazine 10 May 1998