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UCITA Stopped, but Librarians and Consumers Remain Vigilant
Posted On August 11, 2003
On Aug. 1, 2003, the National Conference of Commissioners on Uniform State Laws (NCCUSL; discharged the standby committee of the Uniform Computer Information Transactions Act (UCITA). Lobbying by library and other groups (including many state attorneys general) had been so effective that no state has adopted UCITA in the last legislative term. In fact, four states (Vermont, Iowa, North Carolina, and West Virginia) have passed anti-UCITA legislation—called "bomb shelter" legislation—to prevent vendors from applying the law of Maryland and Virginia (the only two states to adopt UCITA) in their states.

UCITA was the first uniform law governing information contracts. It adopts accepted and familiar principles of commercial contract law, and provides fundamental rules for licensing contracts between users and vendors.

In announcing the withdrawal, NCCUSL president, K. King Burnett stated:

"Clearly our efforts to find consensus and to bring all of the interested parties together has been extraordinary. Unfortunately in the real world, sometimes doing the right thing at the right time is not enough. We have determined to focus the Conference's energies on the items related to our larger agenda and not expend any additional Conference energy or resources in having UCITA adopted. Of course, we are not abandoning our interest in the subject matter. UCITA will remain in place as a resource for the American legal and political community, and for reference by the courts. At some time in the future, there will be opportunities for making contributions of law suitable for the information economy. The Conference remains interested in making these kinds of contributions, and will undoubtedly consider carefully any new opportunities that arise."

The NCCUSL is now in its 112th year. The organization comprises more than 350 lawyers, judges, and law professors, appointed by the states as well as the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, to draft proposals for uniform and model laws and work toward their enactment in their legislatures.

Librarians, consumer groups, writers, trade groups and others have denounced UCITA, arguing:

  • UCITA applied to information products, such as software, databases, CD-ROMs, and anything else invented and sold under a license — even books that come with a floppy diskette, CD-ROM, or software program under license.
  • It specifically supported the validity of "shrink-wrap" and "click-on" licenses, even when consumers could not learn the terms and conditions except when actually opening and/or loading the software.
  • Default license provisions allowed vendors to change the terms and conditions of licenses at any time, simply by posting the changes on their Web sites or sending an e-mail, without insuring customer discovery.
  • Vendors could shield themselves from liability for known defective software programs by selling them "as is."
  • Vendors, in a dispute with a license site, could remotely turn off the software and disable a customer's system under the "self-help" provisions—without permission of a court and without incurring liability for foreseeable harm.
  • It prohibited reverse-engineering of software programs, e.g., to detect security holes or defects in the software.
  • Vendors could restrict consumer lawsuits to a particular state, county, or country.
  • Newspapers and magazines were barred from reviewing or criticizing a software program without the software publisher's permission.
  • Software purchasers could not give purchased software away, donate it to a library or charity, or otherwise dispose of software or other information products.
  • UCITA created more rights for the vendor than currently available under copyright law by: [1] preempting fair use provisions, which provide for interlibrary loans, archiving, and preservation; and [2] preempting "first sale" privileges, which enable libraries to lend information products, as well as donate, transfer, or resell a product when the library no longer needs it.

The Americans for Fair Electronic Commerce Transactions (AFFECT, formerly 4CITE), is the national coalition opposing UCITA. AFFECT said: it applauded "the decision of the National Conference of Commissioners on Uniform State Laws (NCCUSL) not to spend any additional resources in promoting state adoptions of UCITA. The proposed legislation has been the subject of considerable controversy for a decade."

AFFECT is a coalition of over sixty retail and manufacturing concerns, financial institutions, non-profits, consumer advocates, technology professionals, and libraries that has successfully opposed UCITA in the more than 20 states that have considered the act since it was enacted in Virginia and Maryland in 2000.

In response to Burnett's contention that UCITA failed even though it was the "right thing at the right time," Miriam Nisbet, president of AFFECT, commented: "UCITA's failure to take the state legislatures by storm was more than a matter of timing—it was the wrong act as well as the wrong time. We are quite pleased that the Conference has decided to expend no further energy on UCITA."

The decision made at this year's NCCUSL annual meeting recognizes UCITA's continued lack of acceptance by state legislatures. UCITA introductions in the Nevada and Oklahoma legislatures collapsed this year shortly after NCCUSL failed to garner the approval of the American Bar Association. This year, Vermont became the fourth state to take the unusual step of passing UCITA "bomb-shelter" provisions to protect its citizens from UCITA, and Iowa voted to remove the sunset provision on a similar law passed in 2000. West Virginia and North Carolina had enacted bomb-shelter provisions in 2001.

"It is heartening to see NCCUSL backing away from a very flawed statute, but it will never be able to write sound law for the information economy until it takes to heart the criticisms of the user sector," said professor Jean Braucher of the University of Arizona College of Law. "The debate is not just 'politics.' There are fundamental policy problems with UCITA."

According to Mary Alice Baish, associate Washington Affairs representative for the American Association of Law Libraries (AALL): "We are very pleased that NCCUSL has made the decision to no longer actively pursue the enactment of UCITA, which has been the center of controversy for many years. AALL was a founding member of the AFFECT coalition which has successfully opposed UCITA, and law librarians have contributed to its defeat in more than a dozen states since 1999. Our work is not over, however. We will remain vigilant, watching for its introduction in state capitals during the coming year, and will continue to work for the enactment of bomb-shelter bills."

Carol Ebbinghouse is law library director at the California 2nd District Court of Appeals and the "Sidebar" legal columnist for Searcher magazine.

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