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Sponsor's surrender won't end UCITA battle

Related licensing issues are still expected to surface in new vendor contracts

By Patrick Thibodeau
August 11, 2003 12:00 PM ET

Computerworld - WASHINGTON -- UCITA is far from dead in David Lewis' world. The CIO of Deseret Mutual Benefits Administrators in Salt Lake City continues to see the act's provisions -- including a vendor's right to remotely disable users' software -- appearing in software contracts he's asked to sign.

And Lewis said he doesn't expect that to change as a result of the decision last week by the National Conference of Commissioners on Uniform State Laws (NCCUSL) to pull the plug on its stalled push for state-by-state adoption of the controversial software licensing law.

"I think software licensing will be an ongoing battle," said Lewis.

At its annual meeting here last week, the Chicago-based NCCUSL said it couldn't overcome the "wide-ranging opposition" that stymied adoption of the Uniform Computer Information Transactions Act (UCITA) beyond its passage by Virginia and Maryland in 2000.

Although it won't spend any more time or money backing UCITA, the NCCUSL will continue to support it. For that reason and others, UCITA will remain a force in software contract licensing and something corporate IT managers will have to deal with for years, say people on both sides of the issue.

First, UCITA is the law in Maryland and Virginia, and vendors can choose those states as the governing law in a software contract, even if the vendor and user are located in different states.

Second, in the absence of a uniform law governing software licensing and online contracting, it will be up to the courts to sort out licensing issues, such as whether licensing agreements for packaged software are enforceable. And the courts can use UCITA as a blueprint to craft decisions.

"It remains a source of law," said Jean Braucher, a law professor at the University of Arizona in Tucson.

Moreover, there's nothing to stop vendors from seeking state UCITA adoptions without the help of the NCCUSL.

With those rounds incoming, the Washington-based group spearheading opposition, Americans for Fair Electronic Commerce Transactions (AFFECT), will continue the battle. "I think we're going to remain vigilant," said Miriam Nesbit, president of the group and legislative counsel at the American Library Association in Washington.

AFFECT will meet next month to plot its course. One option is continuing a push for so-called bomb-shelter legislation intended to prevent vendors from applying Maryland's or Virginia's UCITA provisions in another state. Vermont, Iowa, North Carolina and West Virginia have adopted that preventive legislation.

Chuck Morton, an attorney at Venable LLP in Baltimore who helped win Maryland's adoption of UCITA, said he believes the lack of court challenges over implementation of UCITA in Virginia and Maryland is evidence that the law "isn't as revolutionary as either camp would have led you to believe."

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