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W O R K S H O P

Software Legislation: Read the Fine Print

December 1, 2002
By Sean Doherty

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Da Bomb

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	In this article
	Introduction
	Da Bomb
	Sites To See
	Utica Fact
	Utica: Shrinking From Its Duties?

Unfortunately, UCITA doesn't break much new ground in remedies and damages in software-licensing disputes, nor in warranties. It spells out what most states and the industry already do in these situations--UCITA calls for vendors to provide so-called implied warranties that guarantee the application does what it was created to do. But UCITA gives vendors the option to add a disclaimer, which does nothing to make the warranties stick and hold software vendors responsible for the condition of their software.

And ironically, UCITA so far has caused more division than unity among the states. Some states, including Iowa, North Carolina and West Virginia, have taken pre-emptive strikes against UCITA, with so-called "bomb-shelter" acts that can protect you in some cases. If an IT manager in Iowa purchased a software package from a vendor in Virginia, for instance, he could take his case to a federal district court in his home state of Iowa, where he would have copyright exceptions like "fair use" on his side, and wouldn't have to battle the UCITA interpretation in Virginia. Still, these bomb-shelter acts aren't bombproof, and could be challenged as unconstitutional.

Don't Call Judge Judy

So how will UCITA be enforced? Like any contract or license, it's up to the state and federal courts. In most cases under today's copyright contract laws, if your software does not perform according to contract, that constitutes a so-called material breach in the contract or license. You can cancel the contract and sue for damages or return the software. The same is true under UCITA, so not much changes there.

But vendors in the UCITA world have more clout in how they protect themselves in these situations. Although UCITA doesn't let vendors disable your software electronically if they suspect you violated the license, it does give them the power to "peacefully" repossess a CD-ROM or boxed copy of the software. (Beware when you escort visiting vendors through your facility if you live in a state that adopts UCITA.)

Meantime, it's up to each state to determine whether UCITA is worth it. This won't be an easy decision given the problems the act raises for IT and consumers, and the lack of clarity about how UCITA will apply to some software. Embedded software in the chipset of a VCR, for instance, may or may not be subject to UCITA. But UCITA does apply to the embedded software on a network-interface card (not NIC hardware).

With all this controversy and confusion surrounding UCITA, one school of thought is to flesh out the UCC regulations rather than having a separate set of laws for IT with UCITA. Technology advances and industry practices change quickly, so UCITA could become outdated before its time, and its inherent complexity could hamper its acceptance and enforcement. More important, such a law needs to protect--not override--existing rights under copyright law. That will only happen if IT gets a say in the law's adoption and implementation in each state.

The debate over UCITA begins in statehouses across the nation next year. Whether the act's shortcomings become painfully obvious, or whether the revised version gives UCITA new life, remains to be seen. Study UCITA carefully with the help of legal counsel and keep an eye out for it on your state legislature's agenda.

Sean Doherty is a technology editor and lawyer based at our Syracuse University Real-World Labs®. A former project manager and IT engineer at Syracuse University, he helped develop centrally supported applications and storage systems. Write to him at sdoherty@nwc.com.