Waiter, there is a United Nations in my Software Licence! - Fernando Cassia

Hver maður er borinn frjáls og jafn öðrum að virðingu og réttindum. Menn eru gæddir vitsmunum og samvisku, og ber þeim að breyta bróðurlega hverjum við annan - Omniglot

Perhaps you haven't noticed but almost every online software licence agreement repudiates a UN treaty on the International Sale of Goods. Since we at TechEye ask the hard questions, we decided to dig a bit to find out what this UN-loathing is all about.

It all started when this scribbler attempted to install some Bluetooth software and drivers - that ended up not working, but that's another story - and by the third time of downloading and re-installation, we took a closer look at the legalese blurb you've got to "agree with", while we scratched our heads as to why did the installer stalled the last time.

It turns out that in these end user licence agreements (EULAs), software firms include a rather puzzling statement where they declare themselves (and the download) outside of the scope of this United Nations convention dubbed "CISG".

In our case, we began this discovery thanks to the formerly Linux-hostile chipset company known as Broadcom, which offers one piece of software dubbed "Widcomm" - a BT software stack for Windows, to be used on machines with the firm's chipset.

You can download it over here, at which point you are shown the EULA, which in its last paragraph states "The parties expressly stipulate that the 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply."

Since it's a piece of freeware, and no money exchanges hands, we were puzzled why something about international sale of goods would apply as obviously no sale had taken place. We initially ventured that lawyers are a lazy bunch and just copy-pasted a standard disclaimer, but we'll soon find out that there's more than meets the eye, and there is a legal debate as to whether it applies to downloaded software.

The statement is talking about the CISG which was enacted way back in 1980 by UNCITRAL, the "United Nations Commission on International Trade Law". It is defined as "a treaty that provides a standardized international sales law that has been endorsed by 76 nations as of August 2010" and that accounts "for a considerable proportion of world trade" (Felemegas, 2000).

Whatever the reason, we found it amusing that Broadcom's lawyers - along with every other software manufacturer for that matter - are terrified of a UN treaty. Unless, of course, they produce broken software and are afraid of being sued on CISG's grounds.

If you search with Google you will find that Broadcom includes a reference to the UN convention on almost every single file offered for download, and you will find in a minute that the rest of the American software industry does, too.

At the last celebration of the United Nations' CISG 25th anniversary, presentations were given about the CISG's role in the world of electronics communications. But we could find nothing as to why companies offering freeware software like Broadcom or Microsoft should repudiate it.

 

The debate: Software on the Net is a moving good. Or isn't it?

Since we're not lawyers we had to rely on more digging until we found why everyone and their mother seems to include such disclaimers in software licence agreements, repudiating the UN CISG.

Apparently some European courts have held that the CISG can only be used as a ground for international spats if the software is physically delivered, that is, on CDs or other media, but if the software is delivered as a download, it's an exchange of information, so it does not apply. We understand this to mean you're on your own if the software sets your computer on fire and eats your children, at least on CISG grounds you are empty handed.

An enlightening article at the annotated CISG database on Pace Law School at one point seems to admit there would be good reasons to extend the CISG treaty to include software travelling around the Net. Schlechtriem states: 'There are certainly good reasons to enlarge the sphere of application of the Convention by understanding the concept of goods liberally not literally, but as far as I remember from the Vienna Conference, there was a strong conviction among many delegations that the sale and transfer problems of intellectual property and the like were not within the mandate of the Conference.

"This alone, of course, cannot answer the question whether computer software can be regarded as movables.'"

Well, software seems to be moving quite nicely on the intertubes...

It explains: "It is a problem much dealt with in German literature … If the contract concerns so-called standard software, i.e., a program not designed especially to meet a specific customer's demands and if the program is recorded on a disk or tape, one could argue that the object of the sale falls under the Convention since it is movable and therefore 'goods'."

That's from Peter Schlechtriem, in 'Uniform Sales Law -- The Experience with Uniform Sales Law in Germany'".

The plot thickens. A 2008 rule by a German appeals court said that only "standard software" is subject to being a "movable good" and that if it includes any customisation, then it's a service. It is all explained very nicely in this article over here, aptly titled "The Applicability and Non-Applicability of the CISG to Software Transactions".

At one point the article says: "The majority view is that the CISG applies to on-line software. Proponents of this position advocate equal treatment for software delivered on a disk and those delivered on-line. In their understanding, since the sale of physical copy of standard software and on-line software transactions are contracts for the same purpose, the law should be blind to the mode of delivery."

Another opinion quoted on the 2008 paper by Hiroo Sono, a counsellor at Japan's Ministry of Justice, is Joseph Lookofsky, who states "the CISG should be applied to international sales of computer software, including transactions which program-sellers often inappropriately dub' licenses" and he targets the 'manufacturing lobby (that) continues its crusade in favour of legislation which would transform sales of goods into (reduced warranty) 'licenses'.

But in reality, it looks like the United Nations' CISG seems to be as dead as a dodo when it comes to seeking damages or remedies from a software firm, more so if it's freeware - so no sale took place - and if it's delivered over the internet, even more so.

Yet, amusingly, lawyers are paid to make it very clear in licence agreements all over the web that the CISG "does not apply here". A quick search reveals that Microsoft mentions - and repudiates - the UN's CISG on 118 of its documents. Apple on 1900 of its documents, Oracle on 117, and HP on, wow, 10,700.

 

With God on their side

So now you know what lawyers working for software firms do a living. It's strange why after reading all this legalese babbling so many people loathe lawyers or others do not take licence agreements seriously. But who else could be repudiating the well-spirited United Nations? While researching this story, we were surprised to learn about the Seventh-Day Adventists' alleged claim about God repudiating the U.N., too.

Indeed, in the May 31, 1949 issue of Lake Union Herald - more precisely tucked away on Page 6 - it describes a schedule of sermons to be held the next few days, and among them, including the 2nd July "God in the Bible repudiates the United Nations, and the Whole Idea of One World". You can find the amusing document at adventistarchives.org over here.

Adventists are a very respectable and healthy God-fearing bunch. A study in California has proved that Adventists live longer than their fellow Californians, due to their dislike of alcohol, tobacco, Mountain Dew, Coke, and Pepsi Cola, among other niceties that they also dislike, apparently much more than the United Nations.

But the research has not pinpointed if the United Nations Convention on the International Sale of Goods, or stress from non-functioning Broadcom Bluetooth software has had any impact on the people's lifespan. They should re-do that study. Because if you Google for "Broadcom Widcomm install hangs" you'll get over six thousand results.

Broadcom installer failure

Shouldn't we be able to call a United Nations Security Council meeting to address the problem of Windows crashes, installers that do not work, or to declare the infamous American "Doctor Watson" copycat a threat to all things good and pure?

Some days, this scribbler feels like calling in the United Nations to intervene on the matter of software quality, or lack thereof.

Disclaimer: The author of this piece is not a lawyer. This article should not be taken as legal advice. Do not do anything based on this article. Consult your nearest lawyer. And if one comes knocking on your door and you did not call him, run like Hell. This article does not fall under the United Nations Convention on the Handling of Hazardous Materials. We repudiate that treaty, unless it's Monday.