New Jersey State Library

Update:

Feburary 19, 2004

What is UCITA?
The Uniform Computer Information Transactions Act (UCITA) is a proposed state contract law designed to standardize the law and provide the default rules for licensing software and all other forms of digital information. UCITA is applicable to "information in electronic form" including computer software, on-line databases, electronic journals, e-books, CD-ROMs, and videos. UCITA has become law in only two states so far (Maryland and Virginia).

For more info on UCITA visit the ALA site

On January 30, 2001, the American Bar Association (ABA) working group (assigned to review the Uniform Computer Information Transactions Act (UCITA) last fall) issued a report that recommends "UCITA should be redrafted to make it easier to understand and use." Sixteen other recommendations that relate to many of the contentious issues that have plagued UCITA follow this first, welcome one. However, there is one disappointing reference to library concerns. ".it might be helpful to add a Comment.to the effect that UCITA is not the appropriate place for the interpretation of federal copyright law." This statement echoes the position repeatedly taken by the drafters of UCITA and promises no assistance if UCITA is further debated in state legislatures.

The report fell just short of representing the consensus of the working group of nine ABA lawyers who participated in the review process. One group member added a strongly worded minority report that took issue with the committee's recommendations. In his dissenting remarks, Donald Cohn states "I know of no way that the report can be read other than to require a rewrite of UCITA to simplify it and to change many of the policy decisions embedded in it as a quid pro quo for favorable ABA action."

The president and Board of Governors of the ABA requested the report. At this point, they must review it and decide how and when to proceed. Lacking any official vote on UCITA from the ABA, opponents of UCITA can draw on the first of the report's recommendations that advises redrafting and cautions that the ambiguity inherent in UCITA will only increase the likelihood of litigation as licensors and licensees seek clarification about its application to computer information transactions.

Text of the ABA report can be found at www.abanet.org/leadership/ucita.pdf. (03/08/02)

On December 20, 2001, the UCITA Standby Drafting Committee proposed 19 amendments to the Uniform Computer Information Transaction Act (UCITA) for approval by the National Conference of Commissioners of Uniform State Laws (NCCUSL) in 2002. The recommendations followed hearings in November 2001 when the committee heard arguments from all sides regarding over 70 submitted amendments.

ALA, ARL and AALL proposed two amendments at those hearings. The library amendment language sought (1) to clarify that terms in mass-market non-negotiated licenses would not be enforceable if they prohibited activities normally permissible under federal copyright law; and (2) to broaden the criteria for declaring contract terms unenforceable.

The proposed NCCUSL amendments:

• do not respond to the core library concerns;
• provide only a narrow library exception that allows the donation or transfer of computer software to a public library or public elementary or secondary school, but only when a computer is donated with the software; and
• do not respond adequately to library arguments about the need for more clear language in the statute to avoid the potential collision between state contract law and federal copyright law

The drafters accompanied their recommendations with comments that attempt to justify their decision not to accept the amendments proposed by libraries. However, the drafters base their comments on a misrepresentation of the library arguments, attributing to libraries positions that they have not only never advocated but which are contrary to library practices and ethics. Finally, the drafters conclude by referring the libraries back to Congress to address their copyright concerns.(01/16/02)

The Uniform Computer Information Transactions Act (UCITA) is a proposed state contract law developed to regulate transactions in intangible goods such as computer software, online databases and other information products in digital form.

UCITA was originally intended to be a revision to the Uniform Commercial Code (UCC), which has been adopted in almost all of the states and territories of the U.S. and which ensures consistent rules governing contract law from state to state. Because the two legal bodies charged with drafting changes to the UCC failed in 2000 to agree on a draft, the proposed statute is being introduced in each state as a stand-alone addition to the state's legal codes.

Publishers and large software producers are the primary supporters of UCITA. Libraries, consumer protection groups, and a number of businesses have been among those opposing the enactment of UCITA as it has been introduced in several states starting in the fall of 1999. UCITA is a complex law that will adversely affect libraries, individual consumers, business, industry, schools and universities -- anyone using software or any kind of digital information.

UCITA may be introduced in as many as 20 states in 2001. Virginia and Maryland passed it in large part because it was touted as an essential component to strengthening a state's position in the new economy. The e-economy will function well only if all businesses and organizations are able to operate under reasonable and fair laws. UCITA does not promote a level playing field.

Libraries' key concerns about UCITA are:

• Consumers of software products will no longer own the products upon purchase; rather consumers will be licensees whose use of the product is determined by license provisions.
• Mass-market licenses, like those accompanying plastic shrink-wrapped software packages as well as other electronic products obtained with "click-on" buttons over the Internet, will include restrictions that cannot be previewed.
• Currently, these mass-market licenses may prohibit public criticism of the product, allow vendors to determine jurisdiction for litigation, prohibit resale or donation of products, and permit vendors to assume rights to creative endeavors of users and to change contract terms anytime.
• Libraries which negotiate licenses with software vendors (often sole source for library purchasing) will incur higher administrative costs for increased need for contract review.
• The kinds of library services now permissible under law -- like inter-library loan, distance learning programs, archiving and preservation -- will be threatened.
• Vendors can sell software with known defects, not disclose them and avoid liabilities for subsequent damages to the licensee. Vendors may disclaim warranties normally expected with other products.
• Vendors will be permitted to insert "back doors" to programs in order to monitor licensee use and to disable the product in the case of disputes with licensees. No judicial process will be required. Vendors could remotely disable software and not be liable for damages to the user.
• Product return or litigation will be the only recourse for licensees dissatisfied with licensing terms or the performance of the product.

A coalition initiated by industry leaders has been formed to stop this law. Americans for Fair Electronic Commerce Transactions (AFFECT) has a campaign strategy to stop UCITA. The plan initially involves research and the development of materials. Focus groups, a national survey, message testing, the production of media test materials, and web site development are all part of the strategy.

At the conclusion of this phase, a detailed campaign plan will be presented to the coalition by the public relations firm Goddard Claussen. The plan will include a campaign timeline, budgets, situational analysis, research results, message strategy, coalition recruitment materials and strategic recommendations on building a campaign team. For more information about AFFECT please go to www.affect.ucita.com.

For more general information about UCITA go to www.ala.org/washoff/ucita.