February 17, 2003 (Computerworld) Backers of the controversial UCITA software licensing law intend to push ahead to win adoption by more states, despite a decision by the American Bar Association last week not to back the proposed law.
The ABA's governing body withdrew the Uniform Computer Information Transactions Act from consideration after it became clear that the measure didn't have enough support among members of the influential legal association.
The move, taken by the ABA at its midyear meeting in Seattle, has no direct impact on UCITA and the push for state-by-state adoption. But it gives the law's opponents ammunition to use against it in states where it's introduced.
UCITA's drafter, the National Conference of Commissioners on Uniform State Laws (NCCUSL), will seek adoption in states that have shown an interest in the act: Arizona, Colorado, Delaware, Oklahoma and Wisconsin, as well as the District of Columbia.
Despite the ABA decision, Carlyle "Connie" Ring Jr., chairman of the NCCUSL's UCITA drafting committee, said he was pleased with the outcome. He claimed that opponents "engaged in counterproductive activity that resulted in the ABA really wanting to leave [UCITA] to the states" to adopt uniform rules.
Ring said there was "a great deal of manipulation of the [procedural] rules" by opponents in order to achieve a negative outcome. But most ABA delegates wanted to take no position because there wasn't enough time to debate the act, nor was the meeting the appropriate forum for deciding its merits, he said.
Not Seeing Eye to Eye
But some ABA members saw the situation differently.
"The thing was dead on arrival, and [supporters] are trying to make [believe] that the ABA didn't want to vote on it," said Hervey Levin, a delegate from the ABA's Tort Trial and Insurance Section and a Dallas-based attorney.
Vincent Polley, chairman of the Cyberspace Law Committee of the ABA's Business Law Section, said UCITA raised concerns among members in part because it's ahead of its time and seeks to put into law provisions that aren't in common commercial practice. He also said that UCITA is confusing and complex and that its controversiality means it's likely to be altered in the various states and therefore not such a uniform law. Polley is deputy general counsel at Schlumberger Ltd., an oil-field services firm in New York.
UCITA is designed to set uniform terms and conditions for software sales and electronic transactions. The measure is supported by vendors and trade groups, but opponents believe it gives vendors too much power in contracts.
UCITA's proponents say that ABA backing isn't critical. "ABA approval isn't something we point to when we are pushing an act," said Katie Robinson, an official at the Chicago-based NCCUSL.
But opponents say that without ABA support, UCITA is seriously wounded, if not dead. "Pushing it forward in anything close to its current form is like dragging a dead whale back to sea," said Bruce Barnes, an IT consultant in Dublin, Ohio.
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