UCC 2B

Uniform Computer Information Transactions Act (UCITA)

UCITA main document. See also recent amendments to UCITA. See also NCCUSL’s comments on UCITA.

UCITA is a proposed law that will govern all contracts for the development, sale, licensing, support and maintenance of computer software and for many other contracts involving information. It also extends easily (vendor’s choice) to sales of computers and computer peripherals and probably extends to many types of embedded software, such as the fuel injectors in your car.

UCITA was initially proposed as an amendment to the Uniform Commercial Code, which is co-authored by NCCUSL (the National Conference of Commissioners on Uniform State Laws) and the ALI (American Law Institute). That project (UCC Article 2B) ended when ALI walked out, after repeatedly calling for fundamental revisions over a three year period (objecting primarily that UCITA’s approach takes away key customer rights, limits competition, and conflicts with federal policies on innovation and fair use of copyrighted materials.) NCCUSL renamed the bill, adopted it in July 1999, primarily with the support of software and information publishers. UCITA recently passed in Virginia and Maryland. It will be under consideration in many additional state legislatures this year.

This page links you to our analyses and to a few analyses by other writers that we think are particularly helpful. For the vendors’ / proponents side, see Carol Kunze’s sites: www.ucitaonline.com for current news and www.2bguide.com for archival materials, including some of the customer-side documents. The primary opposition organization to UCITA is now the 4CITE coalition. Additional information is available at the National Consumer Law Center page (there’s no direct link to the page, go to www.nclc.org, then to Special Initiatives, then to UCITA.). James Huggins’ site, and the IEEE-USA site are also pretty useful.

Articles

You probably can’t read all of these. We have italicized the ones we think are the best ones.

Gentle Introductions

Detailed Analyses

Consumer Issues

Writers’ Issues

  • Nondisclosure and UCITA. (Kaner, NCCUSL Annual Meeting, July 1999). Despite claims to the contrary, the current wording of UCITA will make it riskier for journalists and customers to write comparative reviews or criticisms of software products.
  • Why Writers Should Actively Oppose The Uniform Computer Information Transactions Act. (Kaner, National Writers Union Annual Delegates Assembly, June 19, 1999)
  • Comments on Article 2B: (Kaner, memo to Article 2B drafting committee, October 1998) Detailed section-by-section analysis of the problems of 2B in response to a request from the Chair for detailed, specific proposals.Written from the perspective of customers and writers.

Software Developers’ Issues

Large Customer Issues

Defects, Software Quality

Electronic Commerce and Digital Signatures

Self Help (Vendor’s ability to unilaterally shut down a customer, without court review)

Drafting Process

  • Article 2B and Consumers. (Kaner, Annual Meeting of NCCUSL, July, 1998). Top 10 list of consumer-side proposals circulated at 1998 NCCUSL meeting.
  • Letter to Connie Ring Regarding Publicity and Negotiations in Article 2B, (Kaner, letter, March 1997). The claims that critics of UCITA (Article 2B) were misrepresenting the facts and were unfairly using publicity started in early 1997, with a nasty series of personal attacks on Todd Paglia (Ralph Nader’s lawyer, who has since left the project). I was not yet being personally attacked this way. I stepped in, on the phone and in this memo, trying to restore the amicable style that is most fruitful for negotiation.

General Background

Other Organizations that Oppose UCITA

Background on UCITA (Kaner & Pels, July 1999)

The Uniform Computer Information Transactions Act (UCITA) is a long, complex law that will govern all contracts for the development, sale, licensing, maintenance, and support of computer software, plus most contracts for information (such as books) in digital form. Vendors of other products that contain software, such as computers, can also bring their products within the scope of UCITA, rather than Article 2 of the Uniform Commercial Code, a law that is much friendlier to consumers and small businesses.

In various forms, UCITA has been under development for about 12 years. For the last four years, it was called Article 2B and was drafted as a proposed amendment to the Uniform Commercial Code.

The strength of UCITA is that it creates a uniform law governing a wide range of transactions. It unifies the laws across the states and it resolves some differences in legal treatment of computer-related services and sales/licensing of packaged software.

The problem with UCITA is that the drafting has been dominated by lobbyists for software publishers. The drafting committee is independent of these companies and is trying in good faith to write a decent bill. But committee members (and its chair) have repeatedly expressed the belief that the bill cannot pass without the support of The Industry, and The Industry (trade association’s lobbyists) has repeatedly threatened to withdraw its support if this or that position was not written into (or kept in) the draft law.

Don’t get us wrong about this. We’ve worked in the software industry (usually as managers) for most of our adult lives. We appreciate NCCUSL’s enthusiasm for protecting America’s fastest growing industry. But when a legislative drafting committee lets itself be too heavily influenced by a single industry’s lawyers, the result is a law that is just too imbalanced. Over the past four years, we (and many others) repeatedly proposed compromises or alternatives that we believed were win-win solutions. The results were negligible. Look at our detailed analyses of

The same issues came up year after year, with no genuine progress, year after year.

There are many analyses in the articles, and we encourage you to read them. But to give you a taste, here are just a few examples of the rules under UCITA:

  • Suppose you buy a computer game. When you’ve finished playing it, suppose that you want to take it off of your computer and give it to your sister. Under the law today, this is just like buying a book or a record–you can’t make a copy to keep for yourself, but you can give away the one that you bought or you can lend it to a friend or sell it used. Under UCITA, the publisher can say you can’t sell the software used, lend it or give it away. Book publishers tried to restrict post-sale reselling of books a century ago. A feisty little retailer called Macy’s took them on, and the United States Supreme Court invalidated these restrictions. UCITA’s grant of new intellectual property rights
    to mass-market sellers is one of many reasons that the main American library associations oppose UCITA.
  • Suppose your new computer game doesn’t work. You call for help. The software company charges $3 per minute to talk to you. After half an hour ($90), you realize the company won’t help you. You ask for a refund and return the product. Under UCITA, the company can send you the $40 you paid for the game but keep the $90 you spent on the phone call. You’d have been better off throwing the game away. This is one of many ways in which UCITA
    lets software companies avoid responsibility for their defects, even for defects they know about when they sell the product. Even for defects that they know about and choose not to tell the customer about. Many software developers believe that this rule threatens the professionalism of their work. It is one of the reasons that the main developers’ professional societies (including the Association for Computing Machinery and the Institute for Electrical and Electronic Engineers) oppose UCITA or have expressed serious concerns about it. Similar opposition comes from quality control professionals.
  • Suppose that a software company demonstrates a product at a trade show. You order the product at the show. The product you receive has different screens, is harder to use and less capable. Today, when a software company demonstrates a product, it creates a warranty that the product you get will be the same, work the same, and have the same capabilities as the one demonstrated. UCITA eliminates this warranty for the display layout and commands) and cuts it back for functionality.

Backers of UCITA insist that it leaves consumers and small businesses with our existing rights, and gives us new ones. But it doesn’t. That’s why every consumer advocate we know (including Consumers Union and Ralph Nader’s Consumer Project on Technology) has called for termination of the UCITA project. A July 9, 1999 analysis by the Federal Trade Commission points out that UCITA allows software companies to place “restrictions on a consumer’s right to sue for a product defect, to use the product, or even to publicly discuss or criticize the product.” The analysis concludes, “we question whether it is appropriate to depart from these consumer protection and competition policy principles in a state commercial law statute.”

Please write a letter to your governor and state legislators.

Your input will be noticed.