After nearly four years of intense debate, the National Conference of Commissioners on Uniform State Laws (NCCUSL) said it is shelving efforts to pursue nationwide legislation that would give software publishers the right to shut down computer programs remotely when users, including school customers, are found in violation of their licensing agreements.
Known as the Uniform Computer Information Transactions Act, or UCITA, the initiative sought to create the first state-to-state law governing all contracts for the sale, licensing, service, and support of commercial software or digital information products. Among other things, the legislation would command greater respect for the terms set forth in “shrink-wrap” and “click-wrap” licensing agreements encountered by users when they download or manually install new software onto their machines.
But despite its adoption so far in two states–Maryland and Virginia–the law has struggled to gain momentum nationwide and, in some cases, has met with stark resistance from lawmakers and consumer-interest groups, many of whom contend that UCITA places too much power in the hands of software providers. Now the group responsible for drafting the law has announced it no longer plans to fight for UCITA’s passage.
The decision is a disappointment to software companies and their trade groups, which lobbied hard for widespread adoption of UCITA and were encouraged by NCCUSL’s commitment.
According to NCCUSL’s legislative director, John McCabe, UCITA attempted to bring a sense of uniformity to the chaotic world of internet commerce, where transactions–especially for software products–occur in the form of licensing pacts between vendor and consumer, rather than the outright sale of goods.
“Certainty is useful in commerce. Uncertainty is not useful,” McCabe said. “The assumption was that ultimately an adapted law for computer information contracts is likely to be necessary.”
But while pro-UCITA factions billed the law as a way to extend the protections of the Uniform Commercial Code, which governs the sale of tangible goods, to products in the digital realm, its detractors saw the law as a nod toward free reign for software manufacturers and attempted to thwart the bill’s adoption.
At the head of the opposition movement stands the Americans for Fair Electronic Commerce Transactions (AFFECT), a coalition of more than 60 retail, nonprofit, and consumer groups formed in 1999 to fight UCITA’s passage.
The group has lobbied with legislators in all 50 states to block UCITA, and its efforts have led to a grassroots movement garnering the support of the American Library Association, the Association for Computing Machinery, the American Law Institute, the National Consumer Law Center, and the Federal Trade Commission, among others.
At the heart of the UCITA debate is the law’s controversial “self-help” provision, which would enable software companies to repossess their products in the event that users fail to live up to the terms set forth in their licensing agreement. Specifically, the provision would enable software companies to use “time bomb” mechanisms that would disable software products remotely.
While UCITA’s supporters have said the terms of self-help are analogous to the commercial code laws that allow banks to repossess a person’s house, critics say UCITA provides insufficient protections for consumers.
Some legal experts argued that UCITA would permit software publishers to circumvent the fair-use exceptions in existing U.S. copyright law by enabling them to include language in both “shrink-wrap” and “click-wrap” licensing agreements that is contradictory to standard fair-use policy. Perhaps more important, software customers generally do not get an opportunity to read the fine print in licensing agreements until after the original point of purchase.
Although a uniform law governing computer transactions would not be a bad thing in itself, legal experts who spoke with eSchool News said UCITA probably is not the best answer.
Instead, it would be desirable to have legislation that clearly requires advanced disclosure of contract terms, protects fair-use rights in mass transactions, and gives rights of transfer to the customer, so customers can make fair use of the products, said University of Arizona law professor Jean Braucher.
“It would be better to do nothing than enact a law like UCITA that protects, rather than addresses, abusive practices of producers,” Braucher said. “There are tools in federal and state consumer law and in state contract law that can address the problems until a [better] statute is written.”
See these related links:
National Conference of Commissioners on Uniform State Laws
Americans for Fair Electronic Commerce Transactions