An ABA working group report acknowledged the need for a uniform law governing software licensing transactions. Nonetheless, the ABA questioned whether UCITA should be that legislation. Opponents said the report would aid their efforts to block state-by-state adoption of the proposed law.
"I think it's going to make it much more difficult for UCITA proponents to get it passed in further states this year," said Gordon Pence, intellectual property counsel at Caterpillar.
Even before the ABA report was released, adoption of UCITA across the US had stalled. Maryland and Virginia approved the law in 2000. However, since then opponents to the bill have managed to get anti-UCITA "bomb shelter" measures passed in Iowa, North Carolina and West Virginia. Bomb-shelter statutes make it difficult for states with UCITA to apply the law to those three states' residents.
But UCITA isn't dead, especially in Washington state, home of its major corporate backer, Microsoft.
Some of the ABA's suggestions "are quite worthy of consideration," said Carlyle Ring Jr, chairman of the UCITA drafting committee of the National Conference of Commissioners of Uniform State Laws (NCCUSL), a Chicago-based group that develops commercial law. He took issue with the ABA's recommendation that the act be redrafted and said that UCITA is largely based on existing language in the Uniform Commercial Code.
Opponents allege that the act would give vendors questionable rights in commercial transactions. In response, the NCCUSL drafting committee has proposed changes to UCITA, including an outright prohibition on vendors' ability of vendors to remotely turn off systems in a contract dispute.
The ABA report said that the act would permit a vendor to take "further steps" in a dispute: wording that "implies an authorisation for the licensor to destroy information belonging to the licensee."
Donald Cohn, a member of the ABA committee who has been involved in the UCITA drafting process and works as corporate counsel for e-commerce at Du Pont, dissented from the majority in a separate opinion.
Cohn challenged the ABA group's assertion that UCITA is too complex. He wrote: "In my many years of practice, I do not believe that I have ever read a law that was not complicated, unclear and difficult to understand and apply."