Courts are reluctant to enforce the terms and conditions that accompany software licensing agreements. These contracts, hidden behind 'shrink wrap' until the consumer actually buys the software and gets it home, are often ignored and in their stead are applied common law contract, as well as other consumer law, principles. The UCITA ("Uniform Computer Information Transactions Act") is intended not only to refine the law in this area but in fact to give the software industry some leverage in its battle against illegal copying and pirating of its product. The legislation, passed already in two states, Virginia and Maryland, is facing opposition from several corners.
The UCITA began as UCC §28, "a joint effort of the NCCUSL [National Conference of Commissioners on Uniform State Laws] and the American Law Institute ("ALI") to adapt the Uniform Commercial Code ("UCC") to the modern needs of computer-related goods and services." Its opponents claim that the UCITA has far exceeded this initial purview and has become instead a tool by which software companies can wield unchecked power over consumers.
The American Library Association has come out firmly against implementation. In a letter to the American Bar Association, the ALA cites the threat of increased administrative costs, weakened security and invasion of privacy, along with the undermining of federal copyright law, as grounds for its opposition.
The National Association of Attorneys General, in a letter to the NCCUSL, signed by attorneys general from twenty states, calls the legislation "fundamentally flawed" and iterates concerns regarding the displacement current consumer laws. The attorneys general state that the UCITA threatens to bring not only software but all manner of electronic equipment into its scope, thereby removing the UCC from governance of such sales. Hence the UCITA's high standard with regard to unconscionability would apply in these transactions. As well, the UCITA allows the licensors in sales of software to append the terms and conditions of their product after purchase and use, which the attorneys general see as a potential violation of the individual states' Unfair and Deceptive Practices Acts. The inability of the consumer in this situation to "make informed choices in the marketplace" will result in undermined consumer rights and unfair bargaining power on the part of the software manufacturers.
The American Bar Association has recently refused to endorse the UCITA. The American Law Institute, which as was noted was involved in the initial drafting of the UCITA as UCC §28, withdrew its affiliation with the NCCUSL during the early stages of the legislation. Many law professors, including Lawrence Lessig of Harvard Law School and Pamela Samuelson and Stephen Barnett of Boalt Hall, have expressed their concerns over the implications of the provisions of the UCITA. One state, Iowa, has implemented legislation (so-called "bomb shelter legislation") that would protect its residents from the enforcement of the UCITA. Given this broad-based opposition, it will be interesting to see whither the UCITA and whether it will be coming to a courthouse near you.
Links:
http://www.2BGuide.com/docs/1198ml.html (Letter from Intellectual Property law professors)
http://ucita.com/what_faq.html (UCITA FAQ sheet)
http://www.arl.org/info/letters/AGtoNCCUSL11.html (Letter from the National Association of Attorneys General)
http://www.arl.org/info/frn/copy/ABAletter.pdf (Letter from the American Library Association to the ABA [PDF format])
http://www.abanet.org/leadership/ucita.pdf (Report from the ABA [PDF format])
http://archive.infoworld.com/articles/uc/xml/00/08/21/000821ucissues.xml (A nice primer on the "pitfalls" of the UCITA)
