Despite its downside, UCITA is gaining acceptance throughout the U.S. How does this act impact on the governance of software and networking services?
By Jim Warren
State and local governments are massive consumers of computer software, services and information. There is a controversial new business code that may soon impact every aspect of such computer usage: the Uniform Computer Information Transaction Act (UCITA). In spite of its title, it applies to contracts and usage-limiting licenses for software and networking services, as well as for computerized informa tion.
UCITA was written by 11 members of a drafting committee, two of whom indicated law school affiliations and only one indicated any government affiliation. The chair of the UCITA drafting committee stated that significant parts of it are, "a radical departure from existing law."
Nonetheless, in late July 1999, the National Conference of
Commissioners on Uniform State Laws (NCCUSL) approved the 26,000-word draft by a 43-6 vote with two states abstaining -- thus recommending that it be legislated by each of the 50 states.
Who Likes UCITA?
It is widely understood within the computer industry that the large computer corporations will greatly benefit from UCITA, and some are funding vigorous lobbying efforts to get it enacted -- especially in states where legislators may be a bit less knowledgeable of its possible impacts on business and agency computer users and consumers.
Virginia and Maryland -- aggressively wooing computer corporations -- quickly adopted UCITA as part of their uniform business codes.
By mid-summer, Delaware, Hawaii, Illinois, New Jersey and Oklahoma had also introduced legislation to adopt these "radical" new codes, although Attorneys General for the latter two states are opposing it.
Notably, however, none of the leading technology states, such as California, Massachusetts or Texas -- where some legislators and many business people and citizens are highly computer literate -- have even introduced UCITA as of this writing, much less adopted it.
Is UCITA for You?
UCITA advocates describe it as, "the first comprehensive uniform computer information licensing law. This act uses the accepted and familiar principles of contract law, setting the rules for creating electronic contracts and the use of electronic signatures for contract adoption, thereby making computer information transactions as well grounded in the law as traditional transactions."
But should you support -- or oppose -- UCITAs adoption for agencies and consumers in your state? Would you want to purchase computer products or services under these new statutory contract and licensing rules? Perhaps more importantly, would you want to recommend that your agency make purchases under such licensing and contract rules?
Before deciding, consider who has been highly critical of these new rules, most of them formally opposing UCITA. A very partial list includes: Attorneys General of Arizona, Arkansas, California, Connecticut, Florida, Idaho, Indiana, Iowa, Kansas, Maryland, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Dakota, Oklahoma, Pennsylvania, Tennessee, Vermont, Washington, West Virginia
and Wisconsin, in letters of July 23 and 28, 1999, to NCCUSL; Federal Trade Commission, Consumers Union, Consumer Federation of America, U.S. Public Interest Research Group;
American Association of Law Libraries, Association of Research Libraries, Medical Library Association, American Library Association; ACM (Association for Computing Machinery, the oldest computer professionals organization in the world), IEEE (Institute for Electrical and Electronics Engineers, the largest such professionals
organization in the world), Software Engineering Institute, Independent Computer Consultants Association, Society for Information Management; National Retail Federation, Newspaper Association of America, National Writers Union, Magazine Publishers of America, National Association of
Broadcasters; At least 50 intellectual property law professors, at least 43 contracts and commercial law professors, the American Bar Associations Working Group on Consumer Protection and the New York Bar Association.
Whats So Controversial?