ABA criticises software licensing law

A working group of the American Bar Association has issued a report critical of the controversial Uniform Computer Information...

A working group of the American Bar Association has issued a report critical of the controversial Uniform Computer Information Transaction Act (UCITA) software licensing law.

The legislation, which sets a series of default rules for software licensing transactions, should be redrafted because it is difficult to understand and would cause "considerable controversy and litigation" on how it should be interpreted, according to a report issued by the working group. Opponents of the legislation have maintained in the past that such an ABA stance would put them in a strong position to convince states that adoption of the law would be a mistake.

In addition, the extent to which the law should be applied to software that is integrated into goods, such as home electronics or microwave ovens, is not clear, the report said. "The word 'computer' is so broadly defined that any goods containing a computer chip might be considered to be a computer, raising the possibility that all transactions for consumer electronics devices and most transactions for commercial equipment would fall within its scope," according to the report.

Carol Ashworth, UCITA grassroots coordinator for the American Library Association which was a founding member of a coalition opposing of UCITA, said the coalition, American for Fair Electronic Commerce Transactions (AFFECT), is heartened that the ABA has echoed some of their main objections to UCITA. "What we have always said is that UCITA is complex and ambiguous and that it is overly broad in scope," she said.

UCITA was drafted more than two years ago by the Chicago-based National Conference of Commissioners on Uniform State Laws (NCCUSL) and sent to all 50 states for their consideration as part of an effort to develop uniform commercial laws easing interstate commerce. NCCUSL will review the ABA report and address issues raised in it, said John McCabe, legislative director and legal council of the organisation.

The NCCUSL was "disappointed that [ABA working group members] were not as supportive as we thought they would be," he added.

The report recommends that when software is embedded in and marketed as an integral part of goods, such as with a VCR or microwave oven, UCITA should not apply.

But software loaded onto a general purpose computer would be covered under the law because general purpose computers are designed to work with a variety of software configurations, none of which is integral to the computer, according to the group's recommendations.

Likewise, when software is marketed separately from an appliance but intended to be used with the appliance, the software licence would be governed by UCITA, while the transaction involving the acquisition would be governed by other laws.

Last summer the ABA's Tort and Insurance Practice Section recommended that the association issue a resolution opposing UCITA by the various states. That report prompted the ABA to create the working group.

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