(Kaner
& Pels, available for free use by the press, July 1999). This page
is updated by Cem Kaner, hosted by Cem Kaner and David Pels. (Kaner, July 28, 1999).
News: July 29, 1999 --- UCITA PASSES NCCUSL
The National Conference of Commissioners on Uniform State
Laws () voted to promulgate
UCITA by a vote of 43 to 6, with 2 states obstaining. The states voting
against the bill were Alaska, Iowa, Minnesota, Nebraska, North Carolina,
and Utah.
I reported yesterday that 14 Attorneys General had sent
a letter to NCCUSL opposing the bill. Here is the
text of that letter. Another 11 co-signed that letter yesterday. Here
is the text of the second letter. It is very unusual to have opposition
like this to a bill, especially to a bill that was approved by NCCUSL.
With , the fight now goes to the states.
UCITA has also been sharply criticized by the United States’
We believe that UCITA will
Because of this, we are asking you to write your state's
Governor and your state legislators to urge them to vote against this bill.Until
we post a replacement, this letter could serve
as a model.
UCITA is primarily supported by software publishers, some
computer manufacturers, and some banks.
.UCITA has been sharply criticized by the United States’
.
NCCUSL originally wrote UCITA in partnership with the
American Law Institute. The ALI called for "fundamental revisions" in UCITA
(then called Article 2B) and later withdrew its support and participation
in the project () ().
Please read the background material and then to the . We provide a sample letter for people who don’t have
time to compose their own.
Background on UCITA
The Uniform Computer Information Transactions Act (UCITA)
is a 350-page proposed new law. It will govern all contracts for the development,
sale, licensing, maintenance, and support of computer software, plus most
contracts for information (such as books) in digital form. Vendors of other
products that contain software, such as computers, can also bring their
products within the scope of UCITA, rather than Article 2 of the Uniform
Commercial Code, a law that is much friendlier to consumers and small businesses.
In various forms, UCITA has been under development for
about 12 years. For the last four years, it was called Article 2B and was
drafted as a proposed amendment to the Uniform Commercial Code.
The strength of UCITA is that it creates a uniform law
governing a wide range of transactions. It unifies the laws across the
states and it resolves some differences in legal treatment of computer-related
services and sales/licensing of packaged software.
The problem with UCITA is that the drafting has been dominated
by lobbyists for software publishers. The drafting committee is independent
of these companies and is trying in good faith to write a decent bill.
But committee members (and its chair) have repeatedly expressed the belief
that the bill cannot pass without the support of The Industry, and The
Industry (trade association’s lobbyists) has repeatedly threatened to withdraw
its support if this or that position was not written into (or kept in)
the draft law.
Don’t get us wrong about this. We’ve worked in the software
industry (usually as managers) for most of our adult lives. We appreciate
NCCUSL's enthusiasm for protecting America's fastest growing industry.
But when a legislative drafting committee lets itself be too heavily influenced
by a single industry’s lawyers, the result is a law that is just too imbalanced.
Over the past four years, we (and many others) repeatedly proposed compromises
or alternatives that we believed were win-win solutions. The results were
negligible. Look at our detailed analyses of September 1996 (, ), ,
,
,
and .
The same issues came up year after year, with no genuine progress, year
after year.
There are many analyses in the articles, and we encourage
you to read them. But to give you a taste, here are just a few examples
of the rules under UCITA:
Suppose you buy a computer game. When you've finished playing
it, suppose that you want to take it off of your computer and give it to
your sister. Under the law today, this is just like buying a book or a
record--you can't make a copy to keep for yourself, but you can give away
the one that you bought or you can lend it to a friend or sell it used.
Under UCITA, the publisher can say you can't sell the software used, lend
it or give it away. Book publishers tried to restrict post-sale reselling
of books a century ago. A feisty little retailer called Macy's took them
on, and the United States Supreme Court invalidated these restrictions.
UCITA's grant of new intellectual property rights to mass-market sellers
is one of many reasons that the main American library associations oppose
UCITA.
Suppose your new computer game doesn't work. You call for
help. The software company charges $3 per minute to talk to you. After
half an hour ($90), you realize the company won't help you. You ask for
a refund and return the product. Under UCITA, the company can send you
the $40 you paid for the game but keep the $90 you spent on the phone call.
You'd have been better off throwing the game away. This is one of many
ways in which UCITA lets software companies avoid responsibility for their
defects, even for defects they know about when they sell the product. Even
for defects that they know about and choose not to tell the customer about.
Many software developers believe that this rule threatens the professionalism
of their work. It is one of the reasons that the main developers' professional
societies (including the Association for Computing Machinery and the Institute
for Electrical and Electronic Engineers) oppose UCITA or have expressed
serious concerns about it. Similar opposition comes from quality control
professionals.
Suppose that a software company demonstrates a product at
a trade show. You order the product at the show. The product you receive
has different screens, is harder to use and less capable. Today, when a
software company demonstrates a product, it creates a warranty that the
product you get will be the same, work the same, and have the same capabilities
as the one demonstrated. UCITA eliminates this warranty for the display
layout and commands) and cuts it back for functionality.
Backers of UCITA insist that it leaves consumers and small
businesses with our existing rights, and gives us new ones. But it doesn't.
That's why every consumer advocate we know (including Consumers Union and
Ralph Nader's Consumer Project on Technology) has called for termination
of the UCITA project. A points out that UCITA
allows software companies to place "restrictions on a consumer’s right
to sue for a product defect, to use the product, or even to publicly discuss
or criticize the product." The analysis concludes, "we question whether
it is appropriate to depart from these consumer protection and competition
policy principles in a state commercial law statute."
Please write a
to the commissioners . Your input will be noticed.
The articles at this web site are not legal advice. They do not establish
a lawyer/client relationship between me and you. I took care to ensure
that they were well researched at the time that I wrote them, but the law
changes quickly. By the time you read this material, it may be out of date.
Also, the laws of the different States are not the same. These discussions
might not apply to your circumstances. Please do not take legal action
on the basis of what you read here, without consulting your own attorney.
Questions or problems regarding this web site should be directed to Cem
Kaner, , P.O.
Box 1200, Santa Clara, CA 95052.