From garnet@aufait.net Tue Apr 4 23:21:34 2000
Date: Tue, 4 Apr 2000 23:13:06 -0400 (EDT)
From: The Tibetan Traveller
To: donald_munson@senate.state.md.us
Subject: SB 142 (MUCITA)
Dear Senator Munson,
This morning I received a call from Bob Enten, a lobbyist supporting SB
142. He asked me to read the Senate's amendments to the bill and see if
they addressed my concerns. During our conversation, I mentioned that I
feel that the 'Right to Return' was illusionary. He said that the
amendments addressed that issue. He also pointed out that the Maryland
Retailers Association initially opposed the bill and have since withdrawn
their objection.
I have dome my homework and read all the amendments to MUCITA, including
the House amemdments, talked to the Maryland Retailers Association and
come to the conclusion that I still do not support the bill. (I promise
that I will keep my comments shorter than my original letter.)
Many of the amendments are an improvement over the original
version, specifically the ones concerning self-help, choice of forum, and
getting rid of the dreaded 'AS-IS' clause of shrink-wrap contracts.
Unfortunately, none of the amendments address my core problem with
MUCITA: you have to pay before you can see the contract. If you don't
agree with the contract, you can't get your money back.
I won't bother repeating my reasons for thinking that the 'Right to
Return' in the original bill was illusionary since I had already detailed
them in my initial letter to you. I will point out that none of the
proposed amendments deal with any of my reasons for believing the 'Right
to Return' an illusionary right that will evaporate as soon as you try to
obtain a refund.
Mr. Enten said that 21-406 (I) (2) [amendment 12, page 8 of
SB0142/187574/1] addresses that issue. I wish that was the case, but it
is not. That particular amendment deals with disclaiming and modifying
warranties. It says nothing about returns because a buyer disagreed with
the licensing terms.
I was anxious to contact the Maryland Retailers Association to see why
they withdrew their objections. I had assumed that the MRA would be
representing retailers who sold software. I was wrong. They were
representing retailers who used software. However, our conversation was
informative.
Mr. Zellmor concerns about the bill, self-help and denial of warranties,
were addressed by the amendments. He was not overly concerned about the
'Right to Return' because he felt that if Best Buy wouldn't offer returns,
Comp-USA might. He was not aware that no one offers returns because the
software manufacturers will not refund the retailers.
Mr. Zellmor did make one comment that confirmed my objections to SB 142.
He said that there was nothing in MUCITA that would require a retailer to
change their return policy. He said that other portions of the Maryland
Statutes allow retailers to set whatever return policies they want as long
as they are prominently displayed.
Mr. Enten said that I would have to ask myself if I was better off with
this bill than without it. He pointed out that his clients are currently
using shrink wrap licenses and that the courts have upheld their legality.
I have considered this question and concluded that I am better off with
the existing laws and statutes than those proposed under MUCITA.
First, the legality of shrink-wrap licenses are not as iron-clad as the
software vendors imply. ProCd (86 F. 3d 1447) is the case the industry
usually cites. However, the judge noted that while the appellees had to
pay for the software before viewing the license, the license gave them the
right to return the software if they objected to the license. Since the
appellees did not attempt to obtain a refund, it was not brought to the
courts attention that he would not have been able to get the refund. If
it could be shown that the software vendors, Mr. Enten's clients, are not
acting in good faith and refuse to honor the refund clause, the decision
would probably have gone the other way and the contract may have been
declared null and void.
Second, I could sue the manufacturer directly for breach of contract if I
could not obtain a refund. MUCITA would remove that option. The software
manufacturers would legally be able to point to 21-613(B)(2) and get
themselves dismissed as a defendant. And, according to Mr. Zellmor's
comment's, the retailer can currently disclaim any refunds on opened
software and MUCITA will not effect that ability.
Third, Mr. Enten kept trying to impress on me during our conversation that
the software vendors are currently engaging in the practices that I object
to. This leads me to wonder: If the existing laws are so overwhelming in
the software vendor's favor, why is he trying to get a law passed that
will work against his clients interests.
Fourth, the amended consumer protections are welcome, but they do not
outweigh the fact that MUCITA would turn contract law upside down and
require that we have to pay before we can see the contract.
Unless there is another amendment that would make the 'Right to Return'
law 'iron-clad' and not allow the manufacturer or the retailer to waive
this right, I urge you to vote against this bill.
Thank you for your time in listening to me.
Garnet
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