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UCITA -- A Law Whose Time Should Never Come

Feb 16, 2000, 23:47 (4 Talkback[s])
(Other stories by Rip Linton)

By Rip Linton

[ The opinions expressed by authors on Linux Today are their own. They speak only for themselves and not for Linux Today. ]
While the great majority of the people in the United States are not looking, the wolf is in the hen house. The laws that govern how consumers are treated in their dealings with computer companies are being changed.

The Uniform Computer Information Transaction Act, known as UCITA, is very close to becoming law in Virginia. I guess it has some significance that the part of our country that played a major part in establishing the rights we presently enjoy should now be the first to take away parts of those rights. There is a lot of opposition to UCITA from individuals, trade groups and associations and even some software publishers. But none of them can effectively lobby against the power of the big software companies. States are being convinced that they must pass this act if they want technology companies to operate within their boundaries.

There are a lot of issues that concern me with UCITA. One that stands out, as justification to oppose passage, is the loss of free speech. By clicking on an "I ACCEPT" button or tearing open a shrink wrapped package, I could be agreeing to give away my right to tell anyone of any problems or defects in the program. Will I know that I have given away that right? Think about the language used in shrink wrap licenses today. It is very unlikely that it will say "You agree that you will not tell anyone about problems or defects in this program". Such terms as "non-disclosure", "conformance" and "confidentiality" will be used instead to describe the freedoms that I have given away.

The final draft which was approved and sent to the states is at University of Pennsylvania Law School. This link is to the HTML version. There is a link on this page to a PDF version also. It downloads as 114 pages in the PDF format. To say it is difficult to read is a major understatement.

I submit that the perceived problems, which are used as justification for UCITA, have other solutions. One primary issue is the prevention of piracy. I do not think that UCITA will affect this at all. People who make copies of a program today, will still do so even with UCITA in effect. Copyright law already addresses this issue. I see no need to treat creative works any differently based on the media that they are delivered on or the method used to make use of them.

I believe that the following are all workable solutions that could be implemented without revision of current law.

Software companies can host their software on application servers which they own and/or control. They would have complete control of the software. The user would only see the results, never the actual code used to obtain those results. User interfaces that limit what can be done with the data could be provided. It would be up to the company to decide what platforms their software is used on and how to control access to the servers. This gives them the ultimate protection for their works and for payment. A company could charge for use based on each access, each user, each machine, a time interval or combinations of these. If a user is delinquent he could be disabled without having to access his computers.

Software could be provided on PCMCIA cards. The card could be sealed and have an internal processor so that the input and output pins would not have access to the operating code. With the cost of a typical commercial program where it is today this should not pose a major added expense for the protection of the creative work. With this distribution, a user would buy a right of fair use. How, and where, the user exercises this right of use would be up to the user. If the owner of a work wishes to provide a method for limiting the length of time the user can access the work it could be done. But, the terms of such a limit would have to be spelled out, in plain language, on the outside of the package. No added restrictions or conditions could be placed in a manner that prohibits the user from seeing them prior to purchase. In other words no shrink wrap or click-on terms.

Software that is distributed on CD ROM, diskette or via the Internet would receive the same copyright protection that a printed book does. The rights to fair use would be the same as for a printed book.

It seems to me that the "high technology" companies are taking a very low technology approach to protection with UCITA. I wonder how many of them will be happy when these terms are applied to other forms of creative works?

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