Thursday, January 17, 2002

Some gems from this morning's research:A topic that is near and dear to my heart is the ongoing developments with respect to the Uniform Computer Information Transactions Act (UCITA), which I consider to be harmful to the US software industry and to consumers.

In its original form this act could have hurt the US software industry by not holding them accoutable for quality. If you haven't noticed India's industry has earned a well-deserved reputation for high quality and value that is in no small way due to Indian companies embracing the Capability Maturity Model (CMM) and other quality frameworks as their development paradigm. Contrast this with the US approach where the CMM is not well received outside of the Government and DoD contracting domains. It's clear that any law that further relaxes product liability and quality only shifts the competitive advantage off-shore. That consumers lose under the original provisions of UCITA is a given.

I liken the US software industry of today to the TV industry of days gone by. When I was growing up the top TV brands were all made in the US. Today they are all made by Japanese companies and assembled in Mexico.

What happened? After WW II Japan was rebuilding with a lot of help from the US. We sent teams of experts to assist. Among those experts were Juran, Deming and their colleagues who had sound ideas about quality. Those ideas were not embraced by US companies - it was too hard for one thing, and for another, there were no compelling reasons because consumers were buying everything that US companies could produce. The Japanese, however, had a horrible reputation for quality that extended into the 1950s. Anything marked Made in Japan was clearly a product to avoid because chances were that it would fall apart within days. However, by the 1960s Japan's quality-oriented approach, compliments of US techniques (that US companies did not value), began to pay off. The rest is history.

I see history repeating itself: US software companies cannot be bothered to implement quality methodologies and frameworks because they're too busy releasing new versions, which in reality are maintenance releases or, too often, patches to correct defects in the previous version. In the meantime, off-shore companies are espousing and embracing US developed quality approaches, such as the CMM, and are quietly establishing themselves as producers of quality software. To that end, the original provisions of UCITA would have hastened the migration of competitive advantage to off-shore companies.

In order to understand UCITA, if you are not already familiar with it, you should read the series of articles written by M.E. Kabay. His four articles will get you up-to-speed: Part 1, Part 2, Part 3 and Part 4 paint a dismal picture. However, on 15 January Mr. Kabay's newsletter article, titled The Latest on UCITA, brought a ray of hope. Since this article is not yet in the archives I'm going to extensively quote parts of it:

"On Dec. 17, the UCITA Standby Committee of the National Conference on Commissioners on Uniform State Laws issued a report to its executive committee recommending changes to the draft Uniform Computer Information Transactions Act.
The Standby Committee's report explicitly acknowledged that the "majority of the amendments were submitted by AFFECT, an organization comprised of diverse interest groups and some individual companies for the purpose of opposing UCITA." AFFECT is the Americans For Fair Electronic Commerce Transactions."

"In my opinion, the most significant changes to the draft of UCITA that will be sent to state legislatures in the future are:

  • UCITA does not supersede any consumer-protection laws in force and applicable to the purchase or licensing of software.
  • Software sold through mass-market distribution must not be inactivated by the vendor (the so-called "self-help" provisions of the previous version) in cases of breach of license or contract.
  • Software licenses for products distributed to the public in final form (i.e., not as test versions) cannot extinguish First Amendment rights of consumers to discuss, report, or criticize flaws in those products.
  • Explicit recognition that UCITA "does not displace the law of fraud, misrepresentation and unfair and deceptive practices as they may relate to intentional failure to disclose defects that are known to be material."
  • Explicit rejection of open-source software licenses (and also shareware licenses) from UCITA coverage. UCITA applies only to transactions involving the exchange of money.
  • Reverse engineering is accepted as a legitimate method for ensuring interoperability of licensed software with other products."
The sources of Mr. Kabay's optimism are: REPORT of UCITA Standby Committee December 17, 2001, and Press release from National Conference of Commissioners on Uniform State Laws. Also cited is a Computerworld article titled, UCITA backers agree to changes.

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