UCITA goes back to the drawing board

Computerworld - In an agreement that made UCITA proponents cool their heels, the American Bar Association (ABA) this week called off plans to adopt a resolution seeking extensive revision of the software licensing measure.

The ABA, which is expected to be influential in the state-by-state battle over the proposed law, will instead form a task force to examine the strengths and weaknesses of the legislation. Its opposition to the measure has been building in recent months (see story).

In exchange, the group that proposed the software licensing law to the states, the National Conference of Commissioners on Uniform State Laws (NCCUSL), will postpone its push for adoption of the Uniform Computer Information Transaction Act, as it's formally known, according to sources familiar with the agreement.

Moreover, the Chicago-based NCCUSL in November intends to consider changes in the proposed law in what might be a last-ditch effort to broaden consensus on a measure that has a lot of end-user opposition.

"There are two choices. One is for the states to work together, to collaborate to come up with uniform rules. The other is for Congress to adopt uniform rules," said Carlyle "Connie" Ring Jr., chairman of the NCCUSL's UCITA drafting committee. Ring maintained that if consensus isn't reached on UCITA, federal lawmakers will have little choice but to move in to adopt a workable uniform law.

But UCITA's opponents have little faith that any consensus agreement is possible and say that the proposed law -- so far adopted only in Maryland and Virginia -- can't be fixed.

"I think it's too flawed for that," said Gordon Pence, intellectual property counsel at Caterpillar Inc. in Peoria, Ill. Pence said he's doubtful of the effort to reach a new consensus, since many recommendations made by opponents have been rejected by the drafting committee in prior years.

Moreover, if the NCCUSL does stop pushing for UCITA's adoption while the ABA review is under way, that doesn't mean that vendors and trade groups lobbying in support of the law will curtail their efforts, said opponents.

The ABA's Tort and Insurance Practice Section (TIPS), a major group within the Chicago-based organization, said in a resolution that UCITA should be extensively revised to better reflect current law on licensing intellectual property, "with due regard for basic rights of consumers and the protection of licensees from unwarranted unilateral actions of the licensor."

Proponents have argued that corporate customers are free to set their own contract terms with vendors and that UCITA would set only default rules.

Hervey Levin, an ABA