[Ecommerce] CNET Story on UCITA , AFFECT Comments and ABA Report link

[Manon Ress]

350 commissioners are expected to vote on amendments to Uniform Computer 
Information Transactions Act Thursday.


States spar over stalled software act
http://news.com.com/2100-1023-947182.html
By Paul Festa
Staff Writer, CNET News.com
July 30, 2002, 9:00 AM PT

A controversial initiative to standardize U.S. state laws on software 
licensing faces a crucial vote this week, as battle-weary consumer 
advocates and tech companies pin their hopes on a legal gathering in 
Arizona.

The National Conference of Commissioners of Uniform State Laws (NCCUSL) 
is devoting part of its current annual meeting in Tucson to debating 
amendments to its Uniform Computer Information Transactions Act (UCITA), 
a proposed code to govern software licenses and other digital 
information transactions.

The amendments come as momentum leaches from the beleaguered initiative, 
which is meant to bring the 50 states' various and conflicting software 
licensing laws into alignment. Should they be approved, the amendments 
may further diminish UCITA's chances for widespread adoption as both 
software publishers and consumer advocates balk at the proposed compromises.

UCITA (pronounced you-see-ta) has met with fierce criticism since its 
introduction three years ago. Consumer groups, legal associations and 
library organizations have excoriated the proposed act for the freedom 
it would grant software makers to restrict the use of software and 
dictate the settlement terms for conflicts.

About half of the U.S. state attorneys general have come out in 
opposition to the law, joining the Consumer Project on Technology, the 
Consumers Union, the Electronic Frontier Foundation and the Free 
Software Foundation. Supporters include Microsoft, America Online and 
the Business Software Alliance.

Under the lash of vocal opposition, early versions of the act have 
languished in state legislatures. Virginia and Maryland approved 
versions of UCITA shortly after it was first proposed, but elsewhere it 
has died in committee.

"I think that everyone's growing weary," said Carol Ashworth, the UCITA 
grassroots coordinator for the American Library Association (ALA), which 
has called the amendments insufficient and loophole-ridden. "There's 
still a tremendous difference of opinion about the amendments among the 
commissioners themselves. They spent the first two hours (on Monday) 
talking about just the first three amendments."

[snip]
Among the amendments being debated in Tucson:

• Self-Help: As UCITA now stands, software licenses can outline binding 
alternatives to litigation that may thwart lawsuits against vendors. 
These so-called self-help measures have let software companies shut down 
a piece of software if they have not been paid for or if they claim a 
breach of contract. According to NCCUSL, a proposed change to UCITA 
would abolish provisions for self-help. The ALA claims it would still 
permit loopholes for self-help.

• Opting In, Opting Out: A proposed change removes a section of UCITA 
that limited licensees' ability to opt in or out of UCITA.

• Known Defects: Critics lambasted UCITA for relieving software vendors 
of liability for selling software with known defects. A new section 
"expressly clarifies the applicability of other law to provide 
appropriate remedies for cases where known material defects are 
undisclosed," according to NCCUSL.

• Consumer Protection: Consumer advocates charged that UCITA would strip 
people of legal protections they enjoy under current state law. A new 
section would spell out that existing consumer protection law trumps 
UCITA when the two come into conflict.

• Public Criticism: Free-speech advocates complained that UCITA let 
software makers prohibit public criticism of their products. A new 
section says that any provision limiting criticism rights is not 
enforceable, according to NCCUSL.

• Reverse Engineering: A new section spells out that reverse engineering 
is permissible for the purpose of making products interoperable with 
each other. The amendment was a sine qua non for Sun Microsystems, 
NCCUSL said.
[snip]
"The software industry quite strongly supported this because in the 
beginning it had all the things they wanted," NCCUSL's McCabe said. 
"When you lose the self-help remedy, there's a loss they don't feel is 
in their interest. If the proponents lose something like that, they 
become less excited about it."





----- Original Message -----
From: <clients@bustpatents.com>
To: <srctran@bustpatents.com>
Sent: Tuesday, July 30, 2002 10:47 PM
Subject: PATNEWS: Latest attempts to fix UCITA make matters worse

20020730  Latest attempts to fix UCITA make matters worse
The attempts to make UCITA better seem to be failing, with the
UCITA committee still to biased in favor of software vendors.  The
following is the introduction and executive summary of the AFFECT
(anti-UCITA coalition) comments on the NCCUSL UCITA Standby Committee
proposed amendments.  Not much surprising here.  When the quality of
your software products is as low as the quality of your software
patents, you need to really on software laws as low in legal quality
as UCITA.
Greg Aharonian
Internet Patent News Service

                                ====================

Introduction

On December 20, 2001, the UCITA Standby Committee (the Committee) of the 
  National Conference of Commissioners of Uniform State Laws (NCCUSL)
recommended nineteen amendments to the Uniform Computer Information
Transactions Act (UCITA). The Committee had drafted them in response to 
more than seventy proposed amendments presented by interested parties at 
a hearing it sponsored November 16-18, 2001.

Americans For Fair Electronic Commerce Transactions (AFFECT) is a
broad-based national coalition of consumers, retail and manufacturing
businesses, insurers, technology professionals and librarians opposed to 
UCITA. AFFECT members have been following UCITA for the past decade and 
the coalition has been involved in every state where UCITA has been
legislatively active. AFFECT submitted a package of thirty amendments,
reflecting the major concerns of its members, to the Committee prior to 
the November hearing.

This report offers AFFECT's responses to the Committee's nineteen
recommendations.  The headings are consistent with those used by the
Committee.  In the interest of space, AFFECT's comments are presented
just with sub-headings referencing both the Committee's recommendations
and the text of UCITA.  In addition to the comments presented with each
recommendation, there are two attachments that provide more technical
analysis of the electronic-self help amendment (Attachment 1) and the
library issues (Attachment 2).

NCCUSL's December 20, 2001 press statement, the text of the 
recommendations and associated comments can be found at
www.nccusl.org/nccusl/pressreleases/UCITA_releasedec20.asp.

                                     ====

2002 UCITA Amendment Proposals

On May 29, 2002, the Committee released a revised package of amendments 
that includes recommendations made in response to the American Bar 
Association (ABA) UCITA Working Group report issued on January 30, 2002.
Because the Committee's May revised version of the amendments includes
almost all of the December amendments, AFFECT has elected to include an 
addendum to this report (page 22) that analyzes the few new substantive 
amendments. It should be noted that of the 38 amendments being proposed, 
almost half involve grammatical or other editorial changes that do not 
alter the substance of UCITA .

The task of discussing these changes is made more difficult by the lack 
of consistent format used by the Committee. The amendment numbers from 
December do not correspond to the numbers in the May report.  We have 
used the numbers from December in the body of this report and will 
reference the amendment numbers used in the Committee's May version in 
the Addendum.

AFFECT report is also available online at
www-affect@ucita.com/happening.htm.
The text of the proposed amendments and the UCITA Standby Committee's
response to the ABA report are available at
http://www.nccusl.org/nccusl/ucita/UCITA_Standby_Comm.htm