26 October 2001 The Honorable Chris Hart, IV
Chair, Dear Rep. Hart; Thank you for your invitation to provide the views of the Institute of Electrical and Electronics Engineers - United States of America (IEEE-USA) on the proposed Uniform Computer Information Transactions Act, a model law currently under review in several states to regulate commercial transactions involving computer software, on-line databases and other intangible digital goods. IEEE-USA is an organizational unit of the IEEE created in 1973 to support the career and public-policy interests of the more than 230,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE, including over 9,600 members in the state of Florida. IEEE-USA opposes UCITA for the reasons outlined in our position statement "Opposing Adoption of UCITA By the States," a copy of which is enclosed and which can also be retrieved on-line at: http://www.ieeeusa.org/forum/positions/ucita.html. IEEE-USA stated our concerns to the National Conference of Commissioners on Uniform State Laws (NCCUSL) from the earliest stages of deliberation on the model law when the focus was on amending UCC Article 2B. Most recently, we offered a series of proposed amendments to the Virginia UCITA law last year concerning computer security and privacy, analysis and reverse engineering, public commentary, use of software with competing products, and contractual modification of remedies. We also endorsed amendments concerning attorney's fees in cases involving unconscionable license terms, liability for self help security vulnerabilities, and requirement to provide a copy of the license to the licensee, and open source/free software. Copies of these amendments with associated rationales are also enclosed for reference and can also be retrieved on-line at: http://www.ieeeusa.org/forum/grassroots/ucita/index.html. IEEE-USA is concerned that UCITA will enable practices that discourage competition and innovation, with negative consequences for all sectors of the economy that rely on computers and information. Instead of promoting high-tech entrepreneurism and economic development within the states, we firmly believe that it will actually work to discourage the same. IEEE-USA's Virginia amendment proposals were intended to help ameliorate the most adverse prospective effects of UCITA on the practice of software and systems engineering and were offered in the context that Virginia had already adopted UCITA as state law. IEEE-USA does not believe, however, that these amendments render UCITA "acceptable" law. We remain fundamentally opposed to the proposed model law. Given the lack of receptivity to our concerns by the UCITA drafters over the past ten years, we feel that it is an essentially insurmountable task to modify this law to a point of acceptability and that an entirely fresh approach is needed. Moreover, IEEE-USA believes that UCITA constitutes an undesirable delegation of sovereign power to large software publishers by the adopting states to regulate their citizens and businesses through contract terms. There are very few terms than cannot be included in a UCITA license, which are given the force of law unless voided by a Judge as being against a "fundamental public policy." Under UCITA, what is fundamental public policy can only be defined by the state legislature. The issue of what is a fundamental public policy was one of factors that led the American Law Institute to withdraw support for this act as a new Article 2B under the Uniform Commercial Code. Rather than resolve this issue with the ALI, the NCCUSL Drafting Committee elected to forgo amending Article 2B and instead began drafting the separate UCITA legislation. In addition to the broad consumer implications, our specific concern is that large software publishers will use their power under UCITA to discourage innovation and competition by a variety of licensing practices such as prohibiting software engineering for interoperability, restricting software use with competing products, or preventing a licensee from using a competitor's software or from reselling a software product. Unless the Florida legislature passes laws prohibiting each specific type of term in the license, the license would be enforceable. One fundamental flaw of the model UCITA legislation, for example, is the omission of a right to notice of the enforceable license terms, which was added after the fact by amendment in Virginia and Maryland. Consider, for example, the situation of a Florida businessman who buys a computer loaded with software if the model UCITA were adopted as Florida law. Before the software can be used, the business owner must setup the software in an initialization process. The license is displayed to the owner with a button to click for acceptance; however, as soon as the license is accepted, it is automatically deleted from the computer. Further under UCITA, the software publisher may include a license term reserving the right to modify the license as market conditions change, and publish such modifications on a web site. The Florida businessman is now required to comply with terms that are unilaterally added after the fact to the license by the software publisher without requirement of notice. The businessman doesn't even have a copy of the original license in order to defend itself or assert license rights. What is a Judge to rule if the Florida business, as defendant, cannot show the Judge the license terms that were originally agreed to? UCITA also shifts the burden of warranty for merchantability and fitness for a particular purpose from software vendors to consultants who recommend the software -- a major change from prior law that makes little business sense. This imposes a significant legal and cost burden on small software companies and consultants who must quickly modify their contracts to disclaim such warranties and to safeguard against other ramifications of UCITA. For all these reasons, IEEE-USA urges the Florida House of Representatives to reject the model Uniform Computer Information Transactions Act. Thank you again for this opportunity to provide our views and please let us know if we can provide any additional information or assistance in this regard. Sincerely, Chris J. Brantley Encls.
| Top of Page | Policy Log | Public Policy Forum | IEEE-USA | Last Update:
26 Oct. 2001 Copyright © 2001, The
Institute of Electrical and Electronics Engineers, Inc. |
