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[RRE]IEEE statement against UCITA
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[UCITA, the bizarre set of proposed laws governing the sale of software
in the United States, is still undead. It is about to be considered
by the various state legislatures; if they approve it then it's a done
deal. IEEE has taken a strong position against it (enclosed, heavily
reformatted), and Slashdot has published a practical guide to lobbying
against it:
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Date: Fri, 18 Feb 2000 16:26:47 -0500
From: "Raymond Paul"
[...]
http://www.ieeeusa.org/forum/POSITIONS/ucita.html
[...]
The IEEE-USA Board of Directors approved the following statement on UCITA at the meeting last Thursday.
[...]
Opposing Adoption of the Uniform Computer Information Transaction Act (UCITA) By the States Approved By the IEEE-USA Board of Directors (Feb. 2000)
On behalf of The Institute of Electrical and Electronics Engineers
We believe UCITA should be rejected by the states. UCITA would have a widespread, complex impact, including: (a) the provisions of the act itself; (b) its interaction with the existing statutes, principles, and interpretations of Federal intellectual property law; (c) the provisions currently found in "shrink wrap" and "click-through" software agreements -- many of them questionable or unenforceable under current law -- that UCITA seeks to make enforceable; and (d) UCITA's effect on existing business practices and reasonable purchaser expectations. Into the existing and evolving legal and business situation, UCITA would inject an ironclad statutory framework that is very easy to abuse to the serious detriment of consumers, large business users, and small business users of computer software, software developers, computer consultants and the general public.
Many organizations, including 24 state Attorneys General, the staffs of the Bureau of Competition, Bureau of Consumer Protection, and Policy Planning Office of the Federal Trade Commission, professional and trade associations, consumer groups, the American Law Institute (originally NCCUSL's partner in drafting UCITA), and others have expressed opposition or concern regarding UCITA In some cases the concerns of these organizations parallel ours, and in other cases they raise additional issues. Our concerns are in the following areas:
By changing what would otherwise be considered a sale into a licensing transaction, UCITA permits software publishers to enforce contract provisions that may be onerous, burdensome or unreasonable, and places on the purchaser the burden and cost of proving that these provisions are unconscionable or "against fundamental public policy". Examples of these provisions include prohibitions against public criticism of the software and limitations on purchasers' rights to sell or dispose of software. The first provision prohibits the reviews, comparisons, and benchmark testing that are critical for an informed, competitive marketplace. The second issue could legally complicate transactions including corporate mergers/acquisitions, sales of small businesses, the operation of businesses dealing in second-hand software, and even yard sales.
UCITA would undermine the protections provided by Federal intellectual property law and upset the carefully achieved balance between owners and purchasers of intellectual property. One major protection is that "fair use" case law and statutory copyright law permit "reverse engineering" for certain important purposes, such as development of compatible (interoperable) software products and information security testing. Reverse engineering is the examination of software to identify and analyze its internal elements. Current shrink-wrap agreements often contain strict provisions forbidding reverse engineering. By making these provisions enforceable, UCITA would stifle innovation and competition in the software industry, and would straightjacket efforts of users to provide information security protection for their systems.
UCITA allows software publishers to disclaim warranties and consequential damages even for software defects known to the publisher prior to sale, undisclosed to the buyer, and having damages that can be reasonably foreseen. For example, under UCITA a software publisher could not only prohibit publication of information on security vulnerabilities that users identify but could avoid responsibility for fixing these vulnerabilities. By legalizing the choices of law and forum often included in software agreements, UCITA would allow software publishers to make expensive and burdensome any efforts by purchasers to protect their rights. This includes issues that for a sale would be handled in local small-claims courts. The "self-help" provisions of UCITA would allow software publishers to embed security vulnerabilities and other functions in their software to facilitate "denial-of-service" attacks (remote disablement or destruction of the software) and to avoid liability for accidental triggering of the attacks or exploitation of these functions by malicious intruders. We urge the state legislatures to reject UCITA.
This statement was developed by the Committee on Communications and Information Policy and the Intellectual Property Committee of The Institute of Electrical and Electronics Engineers - United States of America (IEEE-USA), and represents the considered judgment of a group of U.S. IEEE members with expertise in the subject field. The IEEE-USA promotes the careers and public-policy interests of the nearly 230,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE.
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Some Sources of Additional Information
General information:
http://www.4cite.org Encompasses coalition of organizations opposing adoption of UCITA.
http://www.badsoftware.com Includes or links to numerous opposition comments.
http://www.2bguide.com Includes both pro and con comments. "Whatsnew" page has extensive links to relevant UCITA and UCC-2B documents.
Specific:
http://www.ieeeusa.org/forum/POLICY/1999/99july20.html July 1999 IEEE-USA letter to NCCUSL
http://www.2bguide.com/docs/citopp.html Memo by Steven Chow, dissenting member of UCITA drafting committee
http://www.ftc.gov/be/v990010.htm Letter by FTC staff to NCCUSL opposing UCITA
http://www.4cite.org/prinlng.html Memo describing adverse impacts of UCITA on businesses (prepared by Principal Financial Group)
http://www.2bguide.com/docs/50799dad.html Memo from former ALI members of drafting committee declining further participation
http://www.acm.org/usacm/copyright/usacm-ucita.html Letter from the President of ACM to NCCUSL opposing UCITA
[...]
Last Updated: 15 Feb. 2000 Staff Contact: Deborah Rudolph, d.rudolph@ieee.org
Copyright (c) 2000 The Institute of Electrical and Electronics Engineers, Inc. Permission to copy granted for non-commercial uses with appropriate attribution.
Raymond Paul Legislative Representative Technology Policy IEEE-USA 1828 L Street, NW Suite 1202 Washington, DC 20036 Phone: 202-530-8331 Fax: 202-785-0835 ```
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