modify the contract," said Mark Uncapher, a VP at the Information Technology Association of America. "This is just a fail-safe or fallback set of provisions."
UCITA supporters argue the measure gives predictability and uniformity to software licenses. They are also telling early adopting states that UCITA may be a potential high-tech economy builder.
In the meantime, both UCITA's proponents - such as Microsoft, America Online, Network Solutions and the Software & Information Industry Association - and detractors will be duking it out in the court of public opinion.
One of the most hotly contested provisions of UCITA is the allowance of "contractual use restrictions"
One such restriction is a nondisclosure statement. That is, UCITA would enable software makers and distributors of digital content such as e-books, Web sites or CD-ROMs to subject their users to shrink-wrap or "click-through" provisions that prohibit any use of their material or reviews of their material without the content owner's permission.
"UCITA potentially affects the fair use of a wide variety of copyrighted works," writes the Copyright Committee of the New York Bar Association in its June 1999 report on the proposed legislation. "'Computer information,' UCITA's subject matter, includes fiction, history, poetry, databases, and any other text 'obtained from or through the use of a computer, or that is in digital or equivalent form capable of being processed by a computer.' For example, text on a CD-ROM could be shrink-wrapped and sold subject to a license such as this: 'Purchaser may not copy any portion of the contents without Publisher's written permission except for Purchaser's sole and exclusive personal use. Purchaser may not sell, lease, lend or otherwise transfer possession of this CD without Publisher's written permission.'
"The first sentence of this license effectively circumvents copyright's fair use doctrine and its requirement of substantial similarity to prove infringement. The second sentence circumvents copyright's first sale doctrine [i.e., the ability of an owner to sell or give his copy away]."
Another prima facie enforceable "contractual use restriction" allowed by UCITA is the prohibition against reverse engineering of software - crucial for the GNU/Linux world as well as a Constitutionally protected practice for such applications as development of compatible software products and information security testing.
As Linux Today's Richard Stallman recently wrote, "[UCITA] applies to any sort of computer-readable information. Even if you use only free software, you are likely to read articles on your computer, and access databases. UCITA will allow the publishers to impose the most outrageous restrictions on you. They could change the license retroactively at any time, and force you to delete the material if you don't accept the change. They could even prohibit you from describing what you see as flaws in the material."
Furthermore, in Kaner's words, "UCITA section 816 allows software vendors to place disabling codes in software and to activate them remotely (such as by sending an e-mail) to shut down a customer's use of the product."
These and other complaints have led some skeptics to believe that such extreme provisions are so much fear-mongering and, even if they're true, would never come into widespread practice or pass Constitutional muster.
But, the law's opponents note, UCITA's well-funded supporters are counting on a complacent public uninterested in elaborate, arcane legislation at the state level.
As that famous Virginian founding father once wrote, "If once [the people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions."
Computerworld also contributed to this story.
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