The Aug. 1 changes to the Uniform Computer Information Transaction Act (UCITA) may be a step in the right direction, but their limited scope do not protect the interests of the research, education and library communities, according to a recent story in the Chronicle of Higher Education.  UCITA is a proposed "uniform law" that is intended to create a unified approach to the licensing of software and information, and thereby establish a new commercial law extending to nearly all transactions in information. The goal is to make legally binding non-negotiated "shrink-wrap/click-on" licenses for transactions in information.  The proposed law is broadly supported by software producers and publishers.

The goal of uniform laws is to help provide a consistent legislative framework from state-to-state.  The laws are created by the National Council of Commissioners on Uniform State Laws (NCCUSL), an organization of attorneys, with representatives from all 50 states. If a uniform law is approved by NCCUSL, each commissioner would then introduce it as a bill in his or her state legislature. Individual states would decide whether to enact the bill.

"It’s still a very confusing and difficult law to understand and really needs to be reworked," Miriam Nisbet, legislative counsel for the American Library Association, told the Chronicle  when she learned of the changes. "The specific amendments certainly are an attempt to make improvements, but they don’t go far enough." The American Library Association and the Association of Research Libraries have been very vocal in their opposition to UCITA. Libraries are heavily involved in licensing for electronic resources such as electronic journals and software for database management. The groups argue that the law is an assault on federal copyright provisions that allow for fair use, first sale and preservation of information.

One of the modifications to UCITA would loosen some terms of the mass-market shrink-wrap/click-on contracts that typically accompany a piece of software or other information product. With shrink-wrap/click-on license agreements, librarians and other consumers are unaware that they have agreed to certain limitations because the provisions of the agreement are not readily available before purchase and, in the case of shrink-wrap, licenses can be viewed only after the product has been opened.    

AFT member and SUNY Stony Brook librarian Jeanne Galbraith says, "If you open the product, you are agreeing to give away rights of ownership, fair use and privacy. You are held hostage to the contract the company has provided, and legally you can’t cancel the licensing agreement." Software manufacturers maintain that such restrictions ensure that consumers do not freely distribute their products. Librarians say the restrictions stifle consumers’ freedom of speech and undermine their fair use of products they have paid for.

Privacy concerns are especially troubling to the library community, Galbraith notes. By opening software that comes with a shrink-wrap/click-on license, "you are enabling the vendor to monitor the use of [its] product while you have it, and the vendor has the right to turn off the subscription if [the vendor] believes it was used improperly." 

Prior to the new changes, the law had allowed vendors to make a product unusable after the license expired without the vendor first notifying customers of the action about to be taken. The current revision prevents software manufacturers from remotely disabling an individual’s software after the license has expired.  Additional changes to UCITA include provisions that allow consumers to study how pieces of software work and how the software might be re-engineered to work better (reverse engineering). 

UCITA has been under development for many years under the direction of the NCCUSL. UCITA has engendered its share of controversy not only from library and consumer groups but also from state attorneys general and the American Bar Association, which want it to include more consumer protections. [Bette Ann Hubbard]

[September 12, 2002]