At the last meeting, committee chairman Ring offered a "self-help repossession" proposal that required a court order or injunction if substantial injury or harm to public health and safety (or grave harm to public interests) is anticipated with a shutoff. However, a court order is not required in other instances, provided the shutdown possibility is agreed to separately in the license and 15-day notice is provided to a predesignated customer contact. 2B also lets businesses recover damages for wrongful shutoff if they, in turn, notify the software publisher of that potential.

Barney Kantar, procurement manager for DuPont and a past chairman of SIM's procurement working group, calls 2B's notice requirements "illusory," especially since notice can be delivered in a way that doesn't "arouse attention." He thinks the biggest problem, though, is that the threat of self-help is enough to cause the user to compromise and give up things it "would otherwise not give up without a gun at its head." In addition, he says, shutting down one program "may affect the stability of collaborative software or even the access a user has to its own data, which may be unretrievable." Sharon Marsh Roberts, chairman of the Independent Computer Consultants Association, adds that because so much software is embedded it may be possible for a publisher to shut down software without realizing the action imperils lives.

Why shouldn't a court order or arbitration occur before a shutdown? Nimmer says it puts an unreasonable cost burden on publishers who are exercising their rights--but SIM members say that's not the case, since it proposed that legal fees be paid by the user if the shutdown is found to have been legal.

Nimmer emphasizes that the current language is the best compromise that could be reached and if the parties aren't satisfied, then all mention of self-help probably will be dropped--something SIM says might grant carte blanche to shutoff efforts. Nimmer adds that a leaseholder can shut down operation of property if there is a breach without notice or prior agreement.

Who Owns Software?
The biggest difference in buying software and buying a shovel is that with software you only acquire a right of use, not the actual software.

If courts start enforcing the many transfer restraints of shrink- and click-wrap licenses, a merger, acquisition or dissolution may leave businesses unable to transfer considerable investments in software.

While many licenses may not include such restraints, the legal and technical costs involved in a corporatewide legal/technical review and negotiation are apt to be more than all the shrink-wrap PC software is worth.

Businesses say if they were faced with such a situation they'd probably have to strip their machines and swallow huge investments in software. For some smaller businesses, this could be devastating since software tends to be their primary asset.

Business advocates see situations where restraints on transfer are certainly fair--for example, negotiated licenses for beta software or similar contracts to keep software out of competitors' hands. But when it comes to anonymous contracting in shrink-wrap licenses, they think such terms are there to force unnecessary new software purchases.

DuPont's Kantar says most licenses include transfer restraints. He estimates that transfer fees can be as much as 50 percent of the original licensing fee. Transfers become an issue with about 20 percent of the software used. From that he estimates that it saves users about 10 percent of the initial licensing fee to include transferability language in a license agreement.

Nimmer argues that most shrink-wrap licenses don't include transfer restraints and federal law consistently holds that copyright and patent licenses cannot be transferred without consent. Software publishers also state that they have a valid interest in preventing piracy, and it's easier to do so if they can prevent businesses and consumers from selling used software.