ARCHIVED: Uniform Computer Information Transactions Act (UCITA)

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Statement of Carolyn L. Barkley,
President, Virginia Library Association
before the Joint Commission on
Technology and Science (JCOTS)
Advisory Committee #5

December 7, 1999

Delegate May, thank you very much for this opportunity to appear before the JCOTS Advisory Committee #5 regarding the latest draft of the Uniform Computer Information Transactions Act (UCITA). I am Carolyn L. Barkley, President of the Virginia Library Association. My comments today represent the views of the Virginia Library Association and the American Library Association, and the Virginia Association of Law Libraries and the American Association of Law Libraries.

For several years now, representatives from our associations have followed carefully the drafting process of the Uniform Commercial Code Article 2B which has now become UCITA. I suspect that everyone in this room is well aware of the high level of opposition to the draft UCC 2B as developed by the National Conference of Commissioners on Uniform State Laws (NCCUSL). This opposition led the prestigious American Law Institute (ALI) to withdraw from the drafting committee and withhold its support. In addition to the ALI, other groups highly critical of UCC 2B/UCITA include: 26 state Attorneys General; consumer groups; software customers; several coalitions of law professors; the entertainment industry; the library community; and even some software developers. Despite such widespread opposition detailing conflicts with consumer protection laws, copyright laws and First Amendment rights, NCCUSL decided in July to adopt UCITA and to send it out to the states for adoption as a free-standing uniform act.

NCCUSL's stated goal in drafting UCITA was to provide all stakeholders with a set of rules to clarify current law governing commercial transactions involving electronic information. We believe, however, that the final product tilts heavily in favor of software developers and publishers of electronic information at the expense of software consumers and users of electronic databases.

Our nation's libraries are among the largest consumers of software. We use software to run our internal operations and we provide patrons with computerized access to electronic information products and services. We are also the largest consumers of fee-based electronic services and databases: public, academic, special and government libraries expend hundreds of millions of dollars in fees for databases each year and the amount continues to grow. The library community, therefore, has a huge stake in the outcome of your deliberations on the future of UCITA here in Virginia.

We have reviewed the provisions of UCITA and the accompanying set of comments to understand how UCITA would apply to library uses of software products and to our patrons' access and use of fee-based products and services. While we have many concerns with UCITA, I would like to bring to your attention this afternoon three major areas of concern to the library community:

First is the validation of shrink wrap and clickable licenses, in both the mass-market context for consumers and the standard form contract context for libraries, that may restrict otherwise legitimate uses. Our concern is not so much with the validation of these types of licenses but rather with the content of the licenses, and how they may affect our users. We continue to believe that UCITA's preemption provision, Section 105(a), is unnecessarily vague and does not guarantee that licensing terms will not restrict uses that are otherwise granted under copyright law. We are not reassured that contract terms may be unenforceable because they are "unconscionable" under Section 111. That is a high threshold indeed. Nor do we believe that courts would take seriously the claim that a contract violates "a fundamental public policy." We remain unsure of what a "fundamental public policy" would be in this context.

Second, Section 503 indicates that a term in the contract prohibiting transfer is enforceable. This provision could effectively eliminate the "first sale" doctrine by denying libraries the right to transfer legally acquired materials through interlibrary loan, or to enhance their collections through gifts and exchanges. Moreover, although there is a requirement that such a provision must be conspicuous in a mass market license, there is no equivalent requirement for standard form contracts that libraries typically would use.

Third, UCITA Sections 618 and 814-816 on termination and electronic self-help permit a licensor to recover its data or prevent the use of its product when a license expires. This provision would seriously undermine a library's traditional role of preserving information resources. In addition, the electronic self-help provision of "manifesting assent" has no requirement of conspicuousness and there are few procedural protections.

In summary, the provisions of UCITA would substitute the private law of contract for the public law of copyright in ways that would leave consumers, including libraries, with little bargaining power and few rights. We in the library community fully support the thriving growth of electronic commerce. Nonetheless we believe that the historic balance between the interests of information and software producers and information and software users should be maintained in the electronic environment, and can be maintained without in any way hindering e-commerce.

We oppose UCITA in its current form and urge that it not be recommended for adoption to the Joint Commission on Technology and Science by this Advisory Committee. Thank you for this opportunity and I appreciate your time and attention.