Statute called threat to rights

Legislation: Maryland will debate a shift in power over computer software, programs and electronic commerce.

January 31, 2000|By Kevin Washington | Kevin Washington,Sun Staff

Suppose you bought a computer program that crashed and trashed your system -- and the only place you could sue for damages was in Ireland.

Suppose a software giant sued you because you posted unkind comments on the Internet about a program that didn't work.

Or suppose the family photos you posted on the Web turned up in a big company's advertising campaign -- and you learned the company had the right to your image simply because you used one of its programs to edit the photos.

You already may have agreed to terms like these when you broke the plastic seal on a software package or clicked an "I accept" button on a program you downloaded from the Internet.

This week, Maryland's General Assembly takes center stage in the cyber world's debate about how enforceable these often-draconian "shrink-wrap" and "click-on" software licenses should be. The issue is whether the state adopts the Uniform Computer Information Transaction Act (UCITA), a model statute that would regulate electronic commerce and legitimize many of these provisions.

Critical consumer groups, programmers, law professors and some large businesses say UCITA is confusing at best, and too friendly to big companies at worst. But proponents, including the country's largest software publishers and many other businesses, say it would establish standard rules for the electronic age that everyone will be able to follow.

Maryland and Virginia have dashed to be the first states to consider the complex law. In Maryland, UCITA is a major component of a legislative package designed to give the state a leg up in attracting technology business. A hearing on the measure, HB 19, is scheduled for 2:30 p.m. Thursday before the House Economic Matters Committee.

UCITA's critics include the National Consumer Law Center, the Federal Trade Commission, Prudential Mutual Life, Caterpillar Inc., library associations, a variety of legal scholars and the attorneys general of at least 24 states. Many of them have banded together in a group, Competitive Information and Technology Economy, or 4CITE.

"The list of people who oppose this is absolutely stunning," said Skip Lockwood, 4CITE's director.

The critics are focused on shrink-wrap and click-on licenses, which consumers purportedagree to abide by when they open a piece of software or install it on their computers. Under most state laws, publishers have little power to enforce them -- but UCITA would give them teeth.

"The first question is, how often have you read one of these click-on licenses?" said Jamie Love of the Consumer Project on Technology, a Washington-based nonprofit organization created by Ralph Nader. "Now the next question: Even if you read it, would you be likely to understand it without the benefit of counsel?"

UCITA's backers, including Microsoft, America On Line, Citibank, the Federal Reserve and Adobe, call the spat over UCITA sky-is-falling nonsense. They say it doesn't pre-empt state consumer protection laws or remove legal remedies for bad software. And it doesn't make the terms in the licenses automatically enforceable if they are "unconscionable."

"It's not nearly as radical as it is often presented," says Rebecca Gould, vice president for public policy at the Business Software Alliance, which represents large software companies. "This simply establishes rules for the road."

Those rules are definitely murky. In the 1980s, the American Bar Association recommended that the National Conference of Commissioners on Uniform State Laws (NCCUSL), a group of legal experts appointed by the states, come up with model statutes for software transactions. The theory was that consistent regulations from state to state would make high-tech commerce work more smoothly.

At one point, NCCUSL enlisted the American Law Institute, a prestigious association of lawyers, professors and judges, to work on the project. But as the process wore on, the institute dropped out, expressing concerns about UCITA's clarity and coherence.

Cem Kaner, a programmer and lawyer who has written a book about what to do when you've bought bad software, argues that as it stands, UCITA might put the force of law behind a host of troublesome license agreements.

For example, he notes a free program offered by Intel that creates a slideshow out of photographs and displays it on a user's Web page.

"Now buried inside their license is a little clause saying that anything you use with this utility becomes Intel's intellectual property," he said. "They can put silly things like this into these licenses. UCITA does not protect people from this."

Intel didn't return calls last week.

Shrink-wrap and click-on licenses carry other provisions that critics describe as bizarre. For example, some require users to get permission from a manufacturer before they can publicly comment on the company's software. Software agreements often determine where the company can be sued. And a purchaser whose computer is destroyed by software frequently can recover only what he paid for the program.

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