Following the success of UCC (Uniform Commercial Code) as a uniform set of state laws dealing with commercial transactions (sales of goods and secured transactions), NCCUSL (National Conference of Commissioners on Uniform State Laws) has drafted, proposed and finalized UCITA (Uniform Computer Information Transactions Act). UCITA is a "code" for computer information transactions. This code, however, has no use for a compiler and does not come with a debugger. It is a commercial contract code, or "Uniform Law," that provides direction and resolves disputes in computer information transactions (see http://www.law.upenn.edu/bll/ulc/ucita/ucita1200.pdf). These transactions include the shrink-wrap (mass-market) licenses we've been accepting for years with a click of the mouse as well as any "agreements that deal with the creation, modification, access to, license or distribution of computer information" (see Section 102(11) of the act).
UCITA deals with a variety of transactions pertinent to computer information. It applies not to information, per se, but to transactions, contracts and agreements in computer information. Under UCITA, computer information is any information processed or obtained from a computer, including any associated copy, documentation or packaging. Computer information transactions include, but are not limited to, agreements that:
- Create, develop or modify software and other computer information, such as a computer database
- Distribute or grant a right to use a computer program
- Provide access to or use of computer information on remote systems, including contracts where data, text or images are provided to users
- Create or distribute multimedia works that combine multiple forms of authorship and multiple types of information
- Engage data processing or data analysis of computer information
UCITA was drafted over a 10-year period. This "beta" period allowed software developers, computer manufacturers, entertainers, publishers, financiers, insurers, attorneys, librarians and consumers to comment on its content. In 1999, NCCUSL approved UCITA and recommended the act for adoption by the various states. This "gold" version has been adopted by Maryland and Virginia and is under consideration in Arizona, the District of Columbia and New Jersey. (See http://www.cpsr.org/program/UCITA/UCITA_update.html for legislative updates in the various states.)
Under UCITA, information transactions are "licenses" and not "sales" of copies under copyright law. UCITA also enforces the use of mass-market licenses, allowing a licensor or vendor more control in distributing products and computer information. More control in the distribution channel is perceived as less control in the acquisition of computer information, which affects free speech, education, scientific research, and intellectual and cultural exchange.
Who's Good, Who's Bad and What's Ugly
A superficial look at the proponents and opponents of UCITA shows big business to be an advocate and those who want information to be free in opposition. Who's good, who's bad and what's ugly requires a more in-depth investigation of the act.
As many of us know, licensing information is standard practice in today's information industry. Vendors license their computer information products to users. Hence, UCITA does not radically change current business practices. Proponents are quick to point out that UCITA provides basic, recognizable default rules for licensing computer information and makes no changes to existing intellectual property laws of copyright, patent and trademarks. UCITA was drafted in response to existing economic activity and finds its basis in the practices of today's computer information industry.
Flipping the coin, however, we can see that the scope of UCITA is broad. "Transactions in information" affect more than just software companies and IT venture capitalists: UCITA will affect the music industry, public and private information providers--including libraries, data processing centers, publishers, online database providers, XSPs (ASP, ISP, MSP and so on), and consumers alike. Under UCITA, "computer information" can include content already protected under copyright, such as stories, computer programs, images, music and Web pages. It can also encompass other traditional forms of intellectual property, such as patents, trade secrets and trademarks, as well as digital creations such as online databases, content delivery systems using streaming media and even interactive games played on the Internet. ALI (American Law Institute), consumer advocacy groups and libraries have criticized and opposed UCITA for shifting power from consumers to vendors while undermining copyright law and privileges with a click of a mouse.
Many legal commentators opine that UCITA is not necessary where existing common law and copyright law are developing to protect new types of information-based transactions emerging in the Information Economy. For example, most states are finding "click-on" and "shrink-wrap" licenses acceptable where provisions are not unconscionable and do not undermine public policy. In addition, copyright law continues to adapt in the Digital Millennium Copyright Act.
While the dust has not settled yet, UCITA's gold version is likely to make an appearance at a legislature near you. Whether or not UCITA prevails, the days of consumers interpreting their own rights and remedies under computer information transactions may be numbered. Future online columns will explore UCITA's scope and analyze its effects on the IT industry.
Send your comments to Sean Doherty at sdoherty@nwc.com.
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