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Sponsor pulls support for controversial UCITA law

The software licensing law ran into stiff opposition and won passage in just two states

August 1, 2003 12:00 PM ET

Computerworld - WASHINGTON -- Citing widespread political opposition to UCITA, the National Conference of Commissioners on Uniform State Laws (NCCUSL) has pulled its support for the controversial software licensing law and won't seek its adoption in any state.
"Clearly we are experiencing directed intense and incessant politics and strong opposition, without suggestion of concrete alternatives, from some consumer groups, insurance companies and libraries, and the allies they have accumulated," NCCUSL President King Burnett said today in a letter sent to the group's commissioners, who represent each of the states. The NCCUSL, which is financially supported by the states, recommends uniform commercial laws.
One top official of the Chicago-based group called the action "unprecedented" and said it was the result of intense, wide-ranging opposition to the Uniform Computer Information Transaction Act (UCITA).
King said the NCCUSL had become "embroiled in a political debate with unusual dimensions."
Unless a state acts on its own, the move by the NCCUSL ends the state-by-state battle over UCITA but it doesn't end the controversy for two key reasons. First, UCITA is on the books in two states, Virginia and Maryland, and companies in those states will be able to cite the law in their contracts. The law also serves as a resource for courts to use, a point Burnett made by citing several rulings where judges recently made reference to it.
"The law is evolving, and it appears UCITA is influencing that law," said Carlyle Ring, who headed the now disbanded UCITA drafting committee, in an interview at the NCCUSL annual meeting today.
Ring's point wasn't lost on opponents, who intend to continue fighting the licensing law, which sets default rules in software contracts. Opponents said those rules gave vendors too much power to set terms and conditions as well as protect themselves from liability. Supporters say companies are free to negotiate terms and conditions, although opponents say most users don't have the clout to challenge licensing terms.
Miriam M. Nisbet, legislative counsel for the American Library Association and one of the leaders of a coalition of business and academic groups opposing UCITA, said opponents have no plan to disband. "As long as it's out there, people have to worry about it," said Nisbet.
Even if the NCCUSL isn't backing UCITA, King reiterated support for UCITA and suggested in his letter that it's not dead. "We need time and politics to work themselves out," he said.
The action by the NCCUSL came after the group failed again to win UCITA's adoption in any state over the last legislative year. After it won quick adoption in 2000 in Virginia and Maryland, opponents organized and lobbied against it.
Indeed, opponents were so successful in fighting UCITA that they won adoption in four states of anti-UCITA legislation. This "bomb-shelter" legislation is intended to prevent a vendor from applying, for instance, Maryland's UCITA law provisions in a bomb-shelter state. Nesbit said opponents will continue to press for this legislation, which has been adopted in Vermont, Iowa, North Carolina and West Virginia.
Ring said he supports the NCCUSL decision, adding that it had become impossible to reach a consensus about the law and its merits. The debate "is not on the merits, it's on positions that people dug themselves into." He now sees UCITA as being in a period of "repose."
UCITA is a lengthy and complex document intended to offer certainty and uniformity to some online licensing and software contracting. But the law was quickly attacked for some of its overreaching provisions, such as one that would allow companies to employ "self-help" or remote turn-off, in a software dispute. Although the NCCUSL backed away from some of the more controversial provisions, it never made enough changes to satisfy opponents.
Some of UCITA's terms could also be resurrected in new uniform laws or even grafted on to pending uniform laws. The group for now plans to see what kinds of rulings over information and software transactions arise from the courts.
"I think there is a perception that we need to let the whole area of the law go fallow for a while," said John McCabe, legislative counsel for the NCCUSL.

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