When you buy an off-the-shelf product for your home or business, you expect the law to provide you with some basic rights. For example, you can legally sell your used television when you buy a new one. You expect electric appliances such as a coffee maker or toaster will perform as advertised, and you don't expect to land in legal hot water if you lend a book or magazine to a friend or co-worker. Surprisingly, such simple rights may not apply when you purchase software or other digital products covered by an end user license agreements ("EULAs").
Often, when buying software or other digital information, you cannot find out what rights you have under a EULA until you open the sealed ("shrinkwrap") package. At that point, it's too late. You can neither reject the terms of the software license nor, in most cases, return the opened software.
Likewise with the Internet. When you click "I agree" with licensing or purchasing terms, you may even lose your right to criticize the product least you find yourself being sued for product defamation.
The AITP Legislative Affairs Committee has been an active member of Americans for Fair Electronic Commerce Transactions ("AFFECT") for over three years. AFFECT has created 12 Principles for Fair Commerce in Software and Other Digital Products. These 12 Principles are the cornerstone of AFFECT's STOP BEFORE YOU CLICK educational activities to help develop better and more fair laws to govern the purchase of off-the-shelf software.
Customers are entitled to readily find, review and understand proposed terms when they shop. All terms of a proposed deal that might influence a purchase decision should be in plain and conspicuous language.
Customers are entitled to actively accept proposed terms before they make the deal.
Customers are entitled to information about all known nontrivial defects in a product before committing to the deal.
Customers are entitled to a refund when the product is not of reasonable quality.
Customers are entitled to have disputes settled in a local, convenient venue.
Customers are entitled to control their own computer systems.
Customers are entitled to control their own data.
Customers are entitled to fair use, including library or classroom use, of digital products to the extent permitted by Federal copyright law.
Customers are entitled to study how a product works.
Customers are entitled to express opinions about products and report their experiences with them.
Customers are entitled to the free use of public domain information.
Customers are entitled to transfer products as long as they do not retain access to them.
The AITP Legislative Affairs Committee supports this outreach to legislators, policymakers and others interested in a truly competitive digital marketplace. A major turning point came in late 2004 in California. Under the terms of a Settlement Agreement, major software vendors and software retailers involved in the Agreement were required to make changes to their business practices to essentially conform to Principles 1, 2 and 4.