Principles for Fair Commerce in Software and Other
you buy an off-the-shelf product for yourself or your
business, you expect the law to provide you with some
basic rights. For example, your car will work as advertised.
Or you will
be allowed to legally sell the television set when you upgrade to a new one
and you wouldn’t expect something as simple as lending a book to a friend
to create any problems for you.
might surprise you to learn, then, that the rights
you are accustomed to when you buy traditional goods
and services may not apply when you purchase digital
you buy software or other digital information— and
even when you buy another type of product that comes
packaged with a CD-ROM or DVD, for example–the
seller, including the creator, supplier and distributor,
often presents terms that could deprive you of these
rights. Frequently these terms of the deal are called
problem is it can be hard to find out what your rights
are when buying digital products in the mass market.
Often the seller will not make the terms of the “license” available
until after you have opened the sealed package.
it’s too late. At that point, you cannot negotiate
more favorable terms. Nor do you have much, if any,
recourse if you reject them. This anti-customer approach
is used by many digital product sellers. What’s
worse, it could soon be used in transactions for “smart” goods
that incorporate software into their design, such as
autos, fax machines and microwave ovens.
it’s not just off-the-shelf products. When you
purchase, or “license” a digital product
Internet, you are asked to click “I agree” to terms that, if enforced,
may prohibit you from criticizing the product, giving it to someone else or
using it to create new products. Some terms even claim to allow the seller
to invade your privacy by collecting your personal data, monitoring your Internet
activity and using the data in any way they wish. Even though courts might
refuse to enforce such unfair digital product terms, people who read the license
might avoid violating the terms for fear of being sued. Sellers might also
build features into their software that prevent you from breaking a term of
the agreement. Plus they give themselves protection even if a court might later
rule their terms unfair.
unfair digital product terms that many sellers embed
in these agreements for off-the-shelf products, as
well as the product features used to enforce them,
often take away your basic rights as a customer. They
could increase your computer security risks and jeopardize
They could also chill competition.
competitive marketplace depends on a balance of power
between sellers and customers.
Rather than focusing on making secure, bug-free products, many sellers make
the terms of agreement hard to locate and try to get you to sign away your
rights after you purchase a product.
At the same time, they deny all warranties. Consequently, consumers and businesses
must continually struggle to maintain their computers’ reliability and
security and prevent invasion of their privacy.
time to put a stop to unfair digital product terms.
for Fair Electronic Commerce Transactions (AFFECT)
has long favored a competitive and fair marketplace.
We are now undertaking an outreach campaign called
Stop Before You Click to help sellers, users of digital products and policymakers
work together to develop better and more fair laws to govern purchases of off-the-shelf
software and digital products.
cornerstone of AFFECT’s efforts is the creation
of 12 Principles for Fair Commerce In Software and
other Digital Products. * A more detailed version of
the 12 Principles, designed for legislators, policymakers,
and others interested in promoting a truly competitive
digital marketplace, is also available at www.fairterms.org.
*This set of principles was not formulated to apply to agreements for customized
digital products, "open source" or "free" software.
I. CUSTOMERS ARE ENTITLED TO READILY FIND, REVIEW AND UNDERSTAND
PROPOSED TERMS WHEN THEY SHOP.
In a healthy digital marketplace, it should be easy for you to find and read
a product’s proposed terms of agreement before making a decision to buy
it. This is particularly important so that you can compare one product with
another. You should be informed in plain and conspicuous language of all aspects
of the proposed deal that might influence your purchase decision.
CUSTOMERS ARE ENTITLED TO ACTIVELY ACCEPT PROPOSED
TERMS BEFORE THEY MAKE THE DEAL.
Real acceptance requires you to take an active step to indicate agreement to
the terms that become part of the deal. You should not be bound by terms just
because you visit a website, open a box containing a product or install a product
that you already bought. Even if the terms are available somewhere on the website,
inside the box, or on some file in the software, you should be bound by those
terms only if you actively and unambiguously indicate your acceptance of them.
Of course, any terms that are unfair, including but not limited to those discussed
in Principles V-XII below, should not become part of the deal.
CUSTOMERS ARE ENTITLED TO INFORMATION ABOUT ALL KNOWN
NONTRIVIAL DEFECTS IN A PRODUCT BEFORE COMMITTING TO
You should have easy access to information in plain language about any known
nontrivial defects in a digital product. An example of a nontrivial defect
would be a flaw that prevents a spreadsheet from correctly calculating a certain
type of formula or inclusion of spyware or security vulnerabilities. Improving
your awareness of the quality differences between competing products will help
you choose the best products for your particular needs.
CUSTOMERS ARE ENTITLED TO A REFUND WHEN THE PRODUCT
IS NOT OF REASONABLE QUALITY.
You are entitled to assume a product will meet or surpass reasonable customer
the seller's claims. If a product is not of reasonable quality or does not
measure up to the product’s stated purpose, you should be entitled to
return the product for a refund. That refund should be easily available from
the point of purchase or by a reasonably convenient refund procedure.
CUSTOMERS ARE ENTITLED TO HAVE THEIR DISPUTES SETTLED
IN A LOCAL, CONVENIENT VENUE.
If you have a dispute with the seller of a digital product, you should not
be forced to go to an out-of-state court to resolve the dispute. Nor should
you be forced to give up remedies and legal protections guaranteed by the laws
of the state in which you live.
VI. CUSTOMERS ARE ENTITLED TO CONTROL THEIR OWN COMPUTER SYSTEMS.
A seller or third-party should not be able to control or disable your system
or a digital product installed on it. Terms permitting such acts are unfair
unless a digital product is clearly labeled as a product that will only operate
for a fixed period of time. Sellers who implement electronic "self-help" or "repossession" by
remotely disabling a digital product threaten disproportionate damage. In addition,
sellers must take reasonable steps to ensure that a product is free of viruses,
spyware, and other malicious code or security problems that will compromise
your computer systems.
CUSTOMERS ARE ENTITLED TO CONTROL THEIR OWN DATA.
Since in the course of using a digital product, you may enter personal or mission-critical
business data, store private information or create documents for future use,
you must be able to control the dissemination of that data. A seller should
clearly inform you before payment or installation about a product's principal
and significant functions, including whether the seller will copy or distribute
your data. In addition, you are entitled to be able to access data you have
created even if you can no longer use the digital product used to create it,
and you must be able to convert it to a format that other programs can read.
Fair terms do not limit your rights to control your own data.
CUSTOMERS ARE ENTITLED TO FAIR USE, INCLUDING LIBRARY
OR CLASSROOM USE, OF DIGITAL PRODUCTS TO THE EXTENT
PERMITTED BY FEDERAL COPYRIGHT LAW.
Consumers, businesses, libraries and educational institutions rely on "off-the-shelf" digital
products. For 200 years, federal copyright law has carefully developed balanced
rules for the use of copyrighted information. Terms in agreements for mass-market
digital products should not attempt to prohibit activities otherwise permitted
under federal copyright law. For example, journalists and scholars should be
able to quote language in mass-market digital content products and libraries
should be able to lend this type of material. To avoid inhibiting important
fair uses, terms claiming to restrict them should not be used.
CUSTOMERS ARE ENTITLED TO STUDY HOW A PRODUCT WORKS.
Intellectual property law protects software vendors from theft of their work.
We support the aggressive enforcement of those laws. However, it may be necessary
for you to study a product so that you can adapt it to work with your own system
or other systems, understand its security
features, or repair it. This type of study is permitted under intellectual
property law for traditional products available to the public and should be
no different for digital products marketed to the general public.
CUSTOMERS ARE ENTITLED TO EXPRESS OPINIONS ABOUT PRODUCTS
REPORT THEIR EXPERIENCES WITH THEM.
Healthy competition depends on information about competing products in the
marketplace. You must be able to compare product terms and the products themselves,
both qualitatively and quantitatively. You must also be able to recommend and
criticize products, legally reprint images and quote text to explain product
limitations and help other purchasers make informed decisions.
CUSTOMERS ARE ENTITLED TO THE FREE USE OF PUBLIC DOMAIN
Public domain information is free for anyone to use, either because the information
inherently does not fall under copyright protection, because the copyright
term has expired or because the copyright holder has allowed the information
to fall into the public domain. Sellers, therefore, should not be able to take
facts, ideas and other unprotected works from the public domain and claim property
rights to them by limiting your use of these facts or ideas through an agreement.
Such terms are unfair and should be unenforceable.
CUSTOMERS ARE ENTITLED TO TRANSFER PRODUCTS AS LONG
DO NOT RETAIN ACCESS TO THEM.
You should have the right to transfer a mass-market digital product in the
same way that you might legally sell your old television or lend your favorite
book to a friend as long as you do not retain access to it and the new recipient
agrees to observe the fair terms of the deal. Any terms that claim to take
away this right are unfair and should not be enforced.
work is distributed under the Creative Commons Attribution
is a national coalition of consumers, retail and manufacturing
businesses, financial institutions, technology professionals
and librarians committed to the growth of fair and
competitive U.S. markets in software and other digital
2000 AFFECT has successfully prevented the passage
of UCITA (Uniform Computer Information Transactions
Act), dangerous, anti-competitive, anti-business, anti-consumer
legislation. UCITA would have a negative impact on
the U.S. economy and the development of electronic
commerce and new technologies. AFFECT continues to
promote enactment of anti-UCITA “bomb-shelter” legislation
in state legislatures to protect both individual consumers
and businesses from the long-arm reach of UCITA.
outlines AFFECT’s continuing legislative and
policy efforts and links to www.fairterms.org, the
new site for the Stop Before You Click campaign based
on AFFECT’s 12 Principles for Fair Commerce in
Software and Other Digital Products.
Stop Before You Click seeks to promote fair business practices and to guide
sellers, users of digital products and policymakers in developing balanced
law to govern purchases of off-the-shelf software and digital products