[ISN] FW: Got to Love Maryland...Got to Love Microsoft...

From: Richard Forno (rfornoat_private)
Date: Fri Apr 27 2001 - 05:07:43 PDT

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    Isn't it great how irony works?    /rf
    Microsoft's Passport service: No Marylanders allowed?
    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'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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