January 16, 2003
Since 1999, the American Association of Law Libraries has worked closely with the American Library Association and others in opposing efforts to adopt the Uniform Computer Information Transactions Act (UCITA) as a state model law. UCITA would enforce the broad use of shrink-wrap and click-on licenses, allowing vendors to control the downstream uses of their products.
Libraries have opposed UCITA because it represents a fundamental shift in power between copyright law and contract law that threatens the balanced set of copyright law principles and privileges under which the library community currently operates--such as fair use, preservation, and the unhindered use of works in the public domain.
Thus far, UCITA has been enacted only in two states, Maryland and Virginia. The AALL community has worked closely with other members of the Americans for Fair Electronic Commerce Transactions (AFFECT) coalition, both at the national and state levels. As a result, we have successfully opposed UCITA in about twenty states during the past three years.
The National Conference of Commissioners on Uniform State Laws (NCCUSL) approved a series of amendments to UCITA in 2002 that do not substantively improve the Act or address our concerns about its impact on libraries and educational institutions. These changes do not ameliorate our fundamental concern that UCITA will allow licensors to circumvent the provisions of federal copyright law and thereby threaten the core services we are committed to provide and that our respective communities need.
During the Midyear meeting of the American Bar Association that begins in Seattle on February 5th, members of the House of Delegates will deliberate the merits of Resolution 113G proposed by NCCUSL that,
"Approves the Uniform Computer Information Transactions Act (2002) promulgated by the National Conference of Commissioners on Uniform State Laws as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein."
We must speak out now to ensure that Resolution 113G is not passed by the House of Delegates.
It is crucial that members of the ABA House of Delegates hear from law librarians in their state. A listing of members of the House of Delegates, by state, is available at: ABAHOD2003.PDF. Please contact your state's delegation immediately to urge them to oppose Resolution 113G, using the talking points below.
In addition, please redistribute this message broadly to others within your law school, your law library or your firm.
- Law librarians have followed the progress of UCITA with great concern since it was conceived as Article UCC 2B and have been involved in legislative discussions concerning it in over twenty states since 1999. AALL was a founding member of Americans for Fair Electronic Commerce Transactions (AFFECT), the national coalition opposing UCITA.
- Libraries and educational institutions are important stakeholders because we are among the largest consumers of software and fee-based electronic services in the country, licensing over a billion dollars a year in computer information products including databases, online journals, CD-ROMs, e-books, and business software.
- UCITA has been controversial since its inception and the recent amendments adopted by NCCUSL are inadequate in addressing the substantial concerns we and other opponents have been articulating for years.
- The library community did not propose and does not endorse NCCUSL Amendment #12 regarding the transferability of computer software to public libraries and elementary and secondary schools. The exemption does not extend to the full library community and more importantly, provides much less transferability than the "first sale" doctrine of federal copyright law allows.
- The recent changes to UCITA adopted by NCCUSL do not alter our fundamental concern that UCITA will allow licensors to circumvent the provisions of federal copyright law and thereby threaten the core information services we are committed to provide and that our respective legal communities need. We continue to believe that UCITA is a highly flawed piece of legislation that is still not an "appropriate Act" for referral to state legislatures.
Mary Alice Baish,
Associate Washington Affairs Representative,
American Association of Law Libraries