Dr. Dobb's Journal September 2000
If you write software -- open source or proprietary, for pleasure or profit -- you need to find out all you can about a shell game called "UCITA," the Uniform Computer Information Transactions Act. Known in previous incarnations as "Uniform Commercial Code Article 2B" (or UCC 2B), UCITA is a contract law proposal to establish consistent rules for software licenses across all 50 states. In addition to software, UCITA covers multimedia, data and databases, online information, and other "published information content."
As originally drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL), UCC 2B was rejected by the NCCUSL's own governing body because it was a mess. But the NCCUSL pulled a sneaky sleight-of-hand by making UCC 2B a standalone bill, rather than part of the Uniform Commercial Code, and renaming it "UCITA." This is the document being pressed into law that will likely impact all software developers and computer users for years to come.
How? For starters, UCITA holds individuals liable for software flaws -- that's right, you. However, UCITA mercifully lets faceless companies that use shrink-wrap (or "click-wrap") licenses avoid the legal consequences of shipping defective software by simply absolving themselves in their license agreements. But that's just the start. UCITA also lets publishers unilaterally outlaw reverse engineering -- a long-accepted engineering principle. Presumably, if UCITA had been in effect in the 1990s, we would not have been able to deal with Y2K conversions that required reverse engineering. Likewise, unraveling viruses or bugs will be illegal, not to mention reverse engineering to achieve interoperability. But wait, there's more. UCITA lets vendors prohibit transfer of software ownership so that you can't sell or give a package to someone else. And the proposed law lets vendors repossess software by remotely disabling it. The list goes on and on. Read it and weep at http://www.law.upenn.edu/bll/ulc/ucita/ucita200.htm.
So who's in favor of UCITA? Primarily the Software & Information Industry Association (a lobbying organization representing large software vendors) and a bunch of rabid lawyers who are already ordering new Cadillacs thanks to the confusion UCITA will breed.
Who's against UCITA? Just about the rest of the known world, including the ACM, IEEE, American Library Association, American Society of Media Photographers, Association of Research Libraries, Consumer Federation of America, Consumer Project on Technology, Consumers Union, Independent Computer Consultants Association, Free Software Foundation, Software Engineering Institute, Electronic Frontier Foundation, a majority of the state attorney generals, and more.
To date, two states -- Maryland and Virginia -- have signed UCITA into law, and it has been introduced in Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Jersey, and Oklahoma. (Over the strong objection of the NCCUSL, Iowa included a provision that voids UCITA as the governing law -- substituting Iowa law instead -- if the person against whom enforcement is sought is an Iowa resident.) To find out more about UCITA, go to http://www.ucitaonline.com/, http://www.infoworld.com/ucita/, and http://www.badsoftware .com/. Each of these sites provides history, news, and analysis about UCITA.
Apparently, the Federal Trade Commission is concerned enough about UCITA that it has announced a public forum to be held this fall. The FTC is soliciting academic papers and public comment to examine the issue of warranty protection for software and other computer information products and services. Papers and written comments must be submitted on or before September 11, 2000.
If you have thoughts or comments on these or other UCITA-related topics, submit six hard copies (along with diskette) of each written comment to: Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Ave., N.W., Washington, D.C., 20580. Alternatively, you can send your comments in via e-mail to software-comments@ftc.gov. The content of any papers or comments submitted by e-mail should be organized in sequentially numbered paragraphs. All submissions should be labeled "High-Tech Warranty Project -- Comment, P994413." All papers and comments will be publicly available for review at http://www.ftc.gov/. The exact dates, location, and information about the public forums will be announced later.
At the local level, let your state legislators know how you feel about UCITA. Hopefully, if enough people yell, honorable elected representatives can't help but listen.
Jonathan Erickson
editor-in-chief
jerickson@ddj.com