Memo To USACM Regarding Recent NCCUSL Changes to UCITA
For the last several years, USACM has been a member of the
diverse coalition known as Americans for Fair Electronic Commerce Transactions
(AFFECT). AFFECT works to educate the
National Conference of Commissioners of Uniform State Laws (NCCUSL) and state
legislatures regarding the
potential negative impact the proposed Uniform Computer Information Transaction
Act (UCITA) could have on consumers and users of software.
As you may have read, NCCUSL recently approved a package of
amendments to UCITA. In their statement
to the media, NCCUSL announced that the changes “address the concerns expressed
by various interest groups.” However,
AFFECT disagrees. In an analysis of the
amendments to UCITA, AFFECT describes them as “minor technical changes that
combine to form a small improvement to UCITA.”
Therefore, AFFECT continues to oppose the revised UCITA and is
recommending that it be rejected by state
legislatures.
In past USACM communications, we have raised at least four
major concerns with UCITA. Following the
USACM concerns, I have extracted brief comments from the AFFECT analysis of the
UCITA amendments recently approved by NCCUSL.
USACM CONCERNS ON UCITA AND AFFECT ANALYSIS OF NCCUSL’S
CHANGES
UCITA LIMITS LEGAL ACCOUNTABILITY FOR DEFECTIVE SOFTWARE
PRODUCTS. AFFECT Analysis: Despite
changes, UCITA still permits software vendors to make inconspicuous the fact
that the seller is disclaiming implied warranties that the software will work
with other software. Vendors would still
be able to provide that the warranty does not apply after the consumer has
purchased the product and started installation.
UCITA EFFECTIVELY BANS REVERSE ENGINEERING BY PERMITTING
CONTRACTUAL USE RESTRICTIONS. AFFECT
Analysis: The amendment to prohibit terms that prevent reverse engineering for
the purpose of interoperability offers no more relief than the limited
exceptions under the Digital Millennium Copyright Act. Unfortunately, the change is not responsive
to most concerns raised by software liscensees.
UCITA LIMITS PUBLICATION OF THE RESULTS OF
STUDIES OR REVIEWS OF LICENSED COMPUTER INFORMATION. AFFECT Analysis: While changes to UCITA seem
to make terms in software and on-line licenses that prohibit reviews or
criticism of a product unenforceable, it is of little practical value because
it applies only to end-user licensees and only when a product has been offered in its final form to the general public,
including consumers.
UCITA’S ELECTRONIC “SELF-HELP” PERMITS VENDORS TO REMOTELY DISABLE SOFTWARE DURING CONTRACT DISPUTES. AFFECT Analysis: While an amendment prohibits
the use of self-help “under this Act”, the inclusion of the phrase “under this
Act” leaves open the possibility that electronic self-help may still be allowed under the common law or other statutes. In addition, UCITA continues to allow “the
use of an automatic restraint to prevent use” where the contract has terminated
or where the licensor believes it is preventing a use inconsistent with the
agreement.
In conclusion, AFFECT analysis suggests that the changes to
UCITA approved by NCCUSL do not address the concerns raised by USACM and the
computing community. The Digital Commerce Coalition, a well-funded coalition of
companies including AOL and Microsoft, is expected to
make a renewed effort next year to enact the revised UCITA throughout the
states. AFFECT expects the upcoming year to be pivotal and
will likely be asking USACM for active participation and support.
For more information on the NCCUSL changes to UCITA, the
AFFECT analysis is posted at:
http://www-affect@ucita.com/pdf/AFFECTresponseMarch%2002.pdf
To review the most recent USACM letter regarding UCITA, see:
http://www.acm.org/usacm/UCITA_Letter.htm