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Cem Kaner, Ph.D., J.D. c/o Dept of Computer Sciences, Florida Tech
Law Office of Cem Kaner  150 West University Blvd.
kaner@kaner.com  Melbourne, FL 32901-6988

Op-Ed in Network World

Delta: Legal issues

Head: UCITA: a bad law that protects bad software

Byline: Cem Kaner and David L. Pels

Published in Network World, Copyright (c) Network World 1999
We (Kaner and Pels) can authorize you to quote from this paper, but if you quote more than a "fair use" amount, PLEASE acknowledge that you are reprinting material from this paper, that it was first published in Network World, and that it is reprinted with permission.
 

At this point in your career, you’ve probably encountered more than your fair share of software that suffers from poor documentation, inadequate attention to interoperability and known bugs. If so, you need to know about the Uniform Computer Information Transactions Act (UCITA), , which software publishers are pushing in order to head off lawsuits from unhappy customers.

Under UCITA, software publishers have no duty to check their products for viruses. Furthermore, vendors can avoid paying for damage caused by a virus by including a simple disclaimer of implied warranties, which you don't even see until you’ve bought and installed the product. (No other industry in the U.S. gets to enforce post-sale warranty disclaimers.)

In addition, UCITA:

For more on UCITA's impact on business customers, read the Society for Information Management's white paper (on Article 2B) at www.simnet.org/public/ucc.html.

Not surprisingly, even though a typically neutral and well-respected legislative drafting organization, the National Conference of Commissioners on Uniform State Laws (NCCUSL), is officially writing UCITA, the open-to-the-public drafting meetings have been dominated by lawyers representing publishers.

We started attending these meetings three years ago, seeking compromises to reduce customer risk without imposing hard-to-manage risks on publishers. There have been big clashes and loud debates, but often it's the little things that tell you about the people you're negotiating with. For example, in a meeting a couple of years ago, one of the 10 NCCUSL members made a comment about user errors made by "dumb customers." A lawyer representing several publishers replied, "Dumb customers? That's redundant!" Almost everyone in the room seemed to think this was hilarious.

Until recently UCITA was called Article 2B and was a proposed amendment to the Uniform Commercial Code (UCC). All amendments to the UCC are co-sponsored by the American Law Institute (ALI) and NCCUSL. Last year, the ALI called for "fundamental revisions" in Article 2B. On April 9, the ALI withdrew from the Article 2B process, so 2B cannot amend the Uniform Commercial Code. NCCUSL renamed 2B UCITA and is now carrying UCITA on its own.

The last publicly open Article 2B / UCITA drafting committee meeting was held in February. At the NCCUSL national meeting in Denver this July, ArticlUCITA will be submitted for approval. If it passes there, it might go to the state legislatures as early as October. And if UCITA passes in a few states, publishers will be able to make it the law that governs their contracts in all states.

Writing a law that makes it almost impossible to sue software publishers for defects is a poor way to manage the escalating level of software customer dissatisfaction with bad software and bad support. But without opposition from more businesses, that law will pass.

If you want to have your say about UCITA, here are some things you can do:

Kaner is a Silicon Valley-based attorney and software development consultant. Pels heads customer operations and support for the high-technology division of a leading automotive diagnostics company. They are the authors of Bad Software: What To Do When Software Fails (John Wiley & Sons, 1998). They can be reached at ucita@badsoftware.com.


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The articles at this web site are not legal advice. They do not establish a lawyer/client relationship between me and you. I took care to ensure that they were well researched at the time that I wrote them, but the law changes quickly. By the time you read this material, it may be out of date. Also, the laws of the different States are not the same. These discussions might not apply to your circumstances. Please do not take legal action on the basis of what you read here, without consulting your own attorney.
Questions or problems regarding this web site should be directed to Cem Kaner, kaner@kaner.com.
Last modified: July 25, 1999. Copyright © 1999, Cem Kaner. All rights reserved.