Date: Fri, 27 Apr 2001 08:07:43 -0400
Subject: FW: Got to Love Maryland...Got to Love Microsoft...
From: Richard Forno <[log in to unmask]>
To: [log in to unmask]
Isn't it great how irony works? /rf
Microsoft's Passport service: No Marylanders allowed?
http://www.newsforge.com/article.pl?sid=01/04/26/1345252&mode=nocommen
t
Thursday April 26, 02:14 PM EDT [ Closed Source ] -
By Grant Gross
We just know that many of you were secretly thinking about using
Microsoft's
new Passport service. For those of you who don't follow our favorite
monopolist, Passport is Microsoft's online wallet service, to which
you're
supposed to sign in once and shop online feeling all secure forever
after.
Except, perhaps, in Maryland, where the local version of the UCITA
law,
which Microsoft itself worked to pass, conflicts with Passport's terms
of
use so heavily that Maryland residents are apparently not eligible to
use
Passport.
Passport's terms of use say, in small part:
This agreement is governed by the laws of the State of Washington,
U.S.A.
You hereby irrevocably consent to the exclusive jurisdiction and venue
of
courts in King County, Washington, U.S.A. in all disputes arising out
of or
relating to the use of the Passport Web Site or service. Use of the
Passport
Web Site and service is unauthorized in any jurisdiction that does not
give
effect to all provisions of these terms and conditions, including
without
limitation this paragraph.
(The above passage is under "general" in Passport's 2,212-word
terms-of-use
agreement, for those of you actually checking my accuracy.)
What's that mean? Basically, if you want to sue Microsoft because its
self-proclaimed "powerful online security technology" allowed some
script
kiddie in a formerly communist country to access your credit card
number, or
Microsoft wants to sue you for misusing the service, you have to play
ball
on Microsoft's home turf. (You Passport fans in Australia or
Luxembourg or
south Florida, for that matter, may want to think about that scenario
before
you sign up.)
It also appears that Microsoft is attempting to bar residents of
Maryland
and, potentially, other states considering the Uniform Computer
Information
Transactions Act from using Passport with this sentence in the
terms-of-use
agreement: "Use of the Passport Web Site and service is unauthorized
in any
jurisdiction that does not give effect to all provisions of these
terms and
conditions, including without limitation this paragraph."
Maryland's much-maligned UCITA, which is slightly different from the
version
originally proposed, gives its state courts jurisdiction over software
licensing issues for Maryland residents and companies. (Here's the
text of
Maryland's UCITA, but it's in rich text [rtf] format.)
Of course, UCITA also binds consumers to the software license
agreements
they sign, so it would seem that Maryland's UCITA would contradict
itself in
this case -- by giving Maryland courts jurisdiction over software
disputes
at the same time it ties the user to an agreement to use courts in
King
County, Wash.
Maryland Delegate Kumar Barve, a sponsor of UCITA and chairman of the
House
Subcommittee on Science and Technology, says Microsoft may be on the
losing
end in a fight between its terms of use and UCITA. When a state
government
creates consumer protection laws, that law trumps individual
agreements such
as Passport's.
So in the case of a Marylander suing Microsoft over Passport, a
Maryland
judge would decide where the case was tried. If Microsoft was a tiny
little
company that didn't have much of a business presence in Maryland, it
might
persuade a judge to allow it to defend itself back home in Redmond.
But most
judges, Barve says, are likely to decide that Microsoft does have a
"significant business presence" in the state, and therefore, would
likely
make Microsoft's lawyers take the long airplane ride into BWI.
Of course, Microsoft could always challenge Maryland's UCITA. We
wouldn't
dare to encourage frivilous lawsuits, but it might be kind of fun to
observe
a slugfest between the boys from Redmond and the folks that brought us
the
distasteful UCITA -- including Microsoft itself.
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