ARCHIVED: A Quick Look at the Uniform Computer Information Transactions Act (UCITA)

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July 1999

NOTE: UCITA used to be referred to as "Article 2B" or UCC 2B"

What Is UCITA, And Who is Responsible For It?

  • The goal of the Uniform Computer Information Transactions Act (UCITA) is, essentially, to establish a new commercial law for the information economy -- first at the national and then, through the influence of the United States, at a global level.
  • UCITA is a proposed "Uniform Law." The goal of Uniform Laws is to help provide a consistent framework of laws from state-to-state. Uniform laws are created by an organization of attorneys called the National Conference of Commissioners on Uniform State Laws (NCCUSL) with representatives from all 50 states. If a uniform law is approved by NCCUSL, each commissioner will introduce it as a bill in their state's legislature. UCITA is designed to harmonize the law regarding computer information transactions. For example, when a dispute occurs regarding a software license a court would look to UCITA for default rules and for help in interpreting the provisions of the license.
  • NCCUSL is voting on UCITA at their Annual Meeting in Colorado July 23-29, 1999 (www.nccusl.org), so anyone with concerns or opposed to UCITA should act quickly to get their voice heard. Contact the NCCUSL commissioner from your state to convey your concerns.
Who Would be Impacted by UCITA?
The software industry was the initial focus of this model law and software companies have been a driving force in shaping UCITA. However, many other industries will be affected as the scope of UCITA extends to nearly all "transactions in information." For example, UCITA will impact: the music industry, the information technology industry, public and private libraries, data processing service providers, publishers of statistical data, traditional print publishers, online database providers, and the consumer of information. As the scope of UCITA has expanded so has the political nature of the debate.

Why is UCITA Controversial?

  • UCITA represents a movement toward licensing of information in its many forms and away from the sale of copies as traditionally understood under copyright law. UCITA would enforce the broad use of "shrink-wrap" and computer "click-on" licenses (called "mass-market licenses" in UCITA). By licensing rather than selling something, a vendor can wield more control of the downstream use of the product. Placing new constraints on the use of information in mass-market transactions can, in turn, constrain the use of information for important public purposes such as democratic speech, education, scientific research, and cultural exchange. Many believe that UCITA fails to appreciate the strong public interest in prohibiting new restrictions on information exchange.
  • The scope of UCITA is extremely broad. "Computer information," under UCITA, includes everything from copyrighted expression, such as stories, computer programs, images, music and web pages; to other traditional forms of intellectual property such as patents, trade secrets, and trademarks; to newer digital creations such as online databases and interactive games. Although the statute claims to be limited to information in electronic form, it allows other transactions to "opt-in" to being governed by UCITA.
  • Many legal community commentators are of the opinion that UCITA (or something like it) is not necessary or, at least, it is premature. This view is based on the opinion that existing common law and copyright law are developing appropriately to handle the new types of information-based transactions emerging in the information economy.
  • The American Law Institute (ALI), consumer advocacy groups, libraries, and the Federal Trade Commission have continued to criticize and/or oppose the UCITA proposal and prior UCC2B drafts, yet their concerns have not been addressed. Instead, NCCUSL intends to push the UCITA proposal as quickly as possible to state legislatures.
Library Community Concerns
  • UCITA represents a shift in power between copyright law and contract/license law that would endanger 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. For example, fair use and related exemptions could be eliminated via a click-on license.
  • The framework put forth in UCITA ignores the intermediary role of libraries and would undermine the public policy of making information available to the general public on a shared-use basis.
  • The scope of UCITA is too broad and even enables mass-market licensing of books.
  • UCITA enables new constraints on public domain information and materials including ones already protected by intellectual property law.
  • UCITA would create new layers of costly procedures for libraries as more time and money would be needed to educate library staff, negotiate licenses, track use of materials, and investigate the status of materials donated to libraries.
Consumer Concerns
  • UCITA's primary purpose is to shift the balance of power in mass-market transactions involving information products and strengthen the ability of vendors to dictate terms in standard form contracts that are difficult for consumers to negotiate.
  • UCITA would enable a vendor of information products, such as computer software, to restrict a consumer's right to sue for a product defect, to donate the product to charity, to use the product, or even to publicly discuss or criticize the product or information contained in it.
  • UCITA would enable software companies and other information product providers to require that consumers bring all claims against the software company in a state of the software company's own choosing and that may be far from where the consumer lives.
  • A summary of consumer concerns is available at: http://www.infoworld.com/cgi-bin/displayStory.pl?/features/990531ucita3.asp
What You Can Do to Help
NCCUSL is voting on UCITA at their Annual Meeting in Colorado July 23-29, 1999 (www.nccusl.org), so anyone with concerns or opposed to UCITA should act quickly to get their voice heard. Contact the NCCUSL commissioners from your state to convey your concerns. See http://www.badsoftware.com/Commis.asp to find out who your state commissioners are.

Important Links

Information about the Annual Meeting of NCCUSL:

http://www.nccusl.org/meetings.asp

List of State Commissioners:

http://www.badsoftware.com/Commis.asp

Current draft of UCITA:

http://www.law.upenn.edu/bll/ulc/ucita/citam99.asp

Infoworld's letter writing campaign regarding UCITA

http://forums.infoworld.com/threads/get.cgi?115803

Background on UCITA from the Infoworld site:

="http://www.infoworld.com/cgi-bin/displayStory.pl?/features/990531ucita_home.asp

Cem Kaner's site with information about UCITA/UCC2B

http://www.badsoftware.com/

Recent comments that have been sent to NCCUSL regarding UCITA:

http://www.2Bguide.com/nccusl.asp

Federal Trade Commission Letter opposing UCITA, July 9, 1999, (consumer protection issues): Error! Bookmark not defined.

Library Community Letter on UCITA

http://www.arl.org/info/letters/lebrun7.12.asp

Article: Legally Speaking, Does Information Really Want to be Licensed? By Pam Samuelson, September 1998 Issue of Communications of the ACM,

http://sims.berkeley.edu/~pam/papers/acm_2B.asp
ARL, ALA, AALL, MLA, SLA
July 15, 1999