Death of UCITA
Sunday, October 12, 2003
Posted by: Charles Oriez
The National Conference of Commissioners for Uniform State Legislation (NCCUSL) recently announced that it would withdraw the controversial and troubled Uniform Computer Information Transaction Act (UCITA). UCITA was sent to the states for adoption in 1999 and sought to bring a set of consistent rules to software contracts and licensing agreements. At that time, AITP, 32 State Attorneys General, and numerous other organizations, businesses, and individuals came out in opposition to the bill.
During its life, UCITA was only passed in two states - Maryland and Virginia - while numerous other states followed Iowa's lead in exempting businesses from some of the more onerous provisions of UCITA.
UCITA proponents tried to win passage in only two states, Nevada and Oklahoma, in 2003.
In Nevada, SB 463 was introduced by State Senator Care, with a committee hearing set for April 4. Darlene Hite-Dickinson from the Las Vegas AITP chapter contacted Nevada Attorney General Frank Del Papa, who in turn alerted the Nevada Bar Association, which denied knowledge of the bill. It is rare for uniform state legislation to be advanced without the knowledge and support of the local Bar Association. Del Papa was one of 32 AGs to oppose UCITA in letters sent to NCCUSL in July, 1999, and remained opposed to the bill. The bill was withdrawn before the committee hearing could be held.
In Oklahoma, Senator Coffee introduced UCITA as SB697. It was referred to the Senate Appropriations Committee. On March 31, Mark Kleine and other local AITP leaders joined a group of about 20 Oklahoma business leaders to meet with Attorney General Drew Edmondson to reaffirm our opposition to the bill. According to Mark, "Our state library contact had a couple of the national AFFECT folks - Riva [Kinstlick] and Miriam [Nisbet] [in attendance]. The AFFECT folks did a good job explaining that really nothing's changed and UCITA's still bad." Mark also noted that "Our group was so large, the AG's office had to move us to a different meeting room to accommodate the group." The bill died in committee. (See end of article for information on AFFECT.)
In the view of AITP and others, UCITA came to the table with numerous substantial flaws. The statute was intended to standardize the terms of contracts for software. However, most if not all of the terms were drafted for the benefit of the vendor, not for the benefit of the consuming business. It could have barred publication of benchmark tests that would have revealed that a product was defective. It would have protected vendors from liability for shipping products with defects, even if those defects were known and easily fixable before the software was shipped. And it could have bound the consumer to revised contract terms on software purchases, even if notice of the revised terms was never received because the e-mail with those terms never got to you.
Those are only a few of its many problems. If you want to read a detailed analysis of what is wrong with UCITA, and why AITP opposed it, Cem Kaner, a CIS professor at Florida Institute of Technology, prepared a detailed analysis that can be read at his Web site http://www.badsoftware.com/engr2000.htm. His article was published in the Winter 1999/2000 edition of the Journal of Computer and Information Law.
UCITA was defeated by an effective national coalition, Americans For Fair Electronic Commerce Transactions (AFFECT). AITP is a member of AFFECT, along with ACM, SIM, EFF, libraries, trade organizations and many businesses. AITP legislative committee members regularly participated in AFFECT conference calls, and local AITP chapters played a role in states where the other side sought to advance the legislation. Ultimately, the bill was defeated because we out-organized its advocates. AITP would in particular like to recognize the leadership role of the American Library Association in this effort. Its lobbyists coordinated our meetings and conference calls, alerted us to target states, and generally made sure that our bases were all covered. Next time you're in your local library, thank them. The AITP legislative committee would also like to thank our local chapters and leaders in key states. We and our AFFECT allies were able to identify what the key states were, but AITP legislative committee leaders in Colorado and Florida could not affect legislation in Oklahoma and Nevada as effectively as local AITP leaders in those states could. It's up to every local AITP chapter to be ready when legislation that affects the technology industry shows up in state legislature.