UCITA backers agree to changes

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By Patrick Thibodeau

(IDG) -- The drafters of the controversial UCITA software licensing law have done an about-face on some of the proposed law's key provisions, including recommending banning remote system shut-offs, in an effort to broaden support for the embattled law.

The process of adopting a uniform law is "one of accommodation and compromise," said Carlyle "Connie" Ring Jr., chairman of the UCITA drafting committee of the National Conference of Commissioners on Uniform State Laws (NCCUSL), the Chicago-based group that spearheads commercial law adoption in the U.S.

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"I do know that some of the changes that are being proposed will result in satisfying the concerns of some," said Ring. "Others are not going to be as satisfied." But he was hopeful that the recommended changes, which must be approved by the NCCUSL membership, would improve prospects for its state-by-state adoption effort.

The Uniform Computer Information Transactions Act (UCITA) provides a framework for licensing contracts when there's no specific provision in the contracts. Opponents say UCITA's default provisions grant several questionable rights to software publishers, such as prohibiting reverse-engineering and allowing vendors to turn off systems remotely in the event of a contract dispute.

The NCCUSL drafting committee, which released its changes late Thursday, is now recommending that UCITA prohibit disabling of software remotely in the event of a contract dispute. Instead, the proposal recommends a means to seek an expedited remedy in court.

Instead of banning reverse-engineering, new language was included that allows reverse-engineering for system interoperability.

Another change preserves the right of software end users to criticize products they use. There had been some reports of vendors including specific contract language barring end users from discussing problems they may be having with their products. Those provisions were questionable under the First Amendment, but the proposed UCITA change now provides protections.

Another change requires state consumer protection laws to trump UCITA provisions.

A broad coalition of groups, including major companies such as The Boeing Co., have been arguing against the law. Its supporters include Microsoft Corp. and America Online Inc.

But it's unclear whether these changes go far enough to win support from end users and others who have cited a long list of problems with UCITA. Indeed, many opponents believe the law should be scrapped.

Cem Kaner, an attorney and computer science professor at the Florida Institute of Technology in Melbourne and a leading critic of the measure, said the proposed changes don't fix many of UCITA's problems.

"Overall, these changes are not the least bit helpful to consumers or small business customers," said Kaner. "They are less helpful to the open-source and free software communities than they might first appear, and they offer a huge loophole to closed-source, nonfree software publishers that will allow them a new way to evade all warranty liability," said Kaner.

The group representing vendors, the Digital Commerce Coalition, said in a statement that it was reviewing the recommendations to see "whether they preserve UCITA's balanced, practical framework."

UCITA has been adopted in Maryland and Virginia, but opponents succeeded in blocking adoption in several other states this year.