Will one-sided license become law?

UCITA: An industry-backed proposal to govern purchases is denounced by the FTC.

August 30, 1999|By Hiawatha Bray | Hiawatha Bray,Boston Globe

The computer business has saddled us with many a confusing acronym: SDRAM, JPEG, WYSIWYG. Well, here's the most dismaying one yet: UCITA. What's really scary about this one is that it was dreamed up by lawyers.

The National Conference of Commissioners on Uniform State Laws is a band of legal experts who write "model statutes" that can be enacted by all 50 states. That way, the law stays roughly the same between here and Boise.

Last month, the conference served up its latest effort, the Uniform Computer Information Transactions Act, or UCITA. It's a model statute that's supposed to govern purchases of computer software, and the commissioners want to see it become law in every state. So do the world's leading software companies. UCITA is backed by the industry's biggest lobbying groups -- the Business Software Alliance and the Software and Information Industry Association.

Sounds like a winner, until you learn that attorneys general from 26 of the 50 states have denounced the proposed law. So has the Federal Trade Commission, the publishers of Consumer Reports magazine, the Association of Computing Machinery, the American Library Association, and even the American Law Institute, which had worked with the commission to draft earlier versions of UCITA.

Why? Because UCITA takes some of the worst aspects of the software business and etches them permanently into the law.

For instance: Do you actually own the software you buy? Probably not. Read one of those nearly unreadable contracts that come in the box. There's a good chance that what you really bought is a license to use the software, not outright ownership of your copy of it.

Obviously, the programming know-how in your copy of Microsoft Word still belongs to Microsoft, just as the contents of the novel "Rainbow Six" belong to Tom Clancy. But imagine Clancy telling you that he owns your copy of the book, and you need his permission to resell it, or even lend it to a friend.

The book publishing industry actually tried to pull such a stunt early in the century, until Macy's department store took it to the U.S. Supreme Court and won the right to sell used books. The courts have not yet settled the issue of whether consumers own the software they buy. UCITA would settle it, and the answer would generally be "no."

This might not be too bad if the license terms are reasonable. Lots of companies grant permission to resell software, for instance. But how will you know before you buy? Under UCITA, the full license doesn't have to be provided until you've purchased the software. Yes, you're allowed to return it if you don't like the terms, but that's still a considerable stumbling block. There's a cheap, simple solution: require companies to publish their licenses on a Web site. UCITA doesn't bother with this.

Under UCITA, software companies can dream up just about any licensing scheme they want, as long as they provide the consumer with "conspicuous" notice of the terms. Companies already try to blow these terms past us, but UCITA would provide them with an extra layer of legal protection.

Did you know that Network Associates Inc. forbids users of its McAfee antivirus software from publishing reviews of the product without permission? It's right there, "conspicuously" displayed in one of those licenses virtually nobody takes the time to read. Under existing law, such a provision is probably unenforceable, and it might also be unenforceable under UCITA. But it could take a few years of plodding through federal courts to find out.

Raise these concerns with software industry folks, and they wonder about all the fuss. "Quite frankly, why should the attorney general care about UCITA?" said Mark Nebergall, counsel for the Software and Information Industry Association. Nebergall said the state attorneys general who signed an anti-UCITA letter didn't know what they were doing. He figures the AGs were goaded into signing by the states' consumer protection lawyers.

Well, of course, Mark. That's why states have consumer protection lawyers -- to blow the whistle on laws that threaten to injure consumers. Laws like UCITA that, in its current form, should be sent to wherever acronyms go when they die.

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