Software law backers lose political ammunition

Backers of the controversial UCITA software licensing law intend to push ahead to win adoption by more states, despite a decision...

Backers of the controversial Uniform Computer Information Transactions  software licensing law in the US intend to push ahead to win adoption by more states, despite a decision by the American Bar Association last week not to back the proposed law.

The ABA's governing body withdrew after it became clear that the measure did not have enough support among its members.

The move, taken by the ABA at its midyear meeting in Seattle, has no direct impact on UCITA and the push for state-by-state adoption, but it gives the law's opponents ammunition to use against it in states where it has been introduced.

UCITA's drafter, the National Conference of Commissioners on Uniform State Laws (NCCUSL), will seek adoption in states that have shown an interest in the act: Arizona, Colorado, Delaware, Oklahoma and Wisconsin, as well as the District of Columbia.

Despite the ABA decision, Carlyle Ring, chairman of the NCCUSL's UCITA drafting committee, said he was pleased with the outcome. He claimed opponents "engaged in counterproductive activity that resulted in the ABA really wanting to leave [UCITA] to the states" to adopt uniform rules.

Ring claimed there was "a great deal of manipulation of the [procedural] rules" by opponents to achieve a negative outcome. But most ABA delegates wanted to take no position because there was too little time to debate the act, and the meeting was not the appropriate forum for deciding its merits.

However, some ABA members saw the situation differently.

"The thing was dead on arrival, and [supporters] are trying to make [believe] that the ABA didn't want to vote on it," said Dallas-based attorney and ABA delegate Hervey Levin .

Vincent Polley, chairman of the Cyberspace Law Committee of the ABA's Business Law Section, said UCITA raised concerns among members in part because it was ahead of its time and sought to put into law provisions that had nothing in common with commercial practice.

He added that UCITA was confusing and complex and that its controversiality meant it was likely to be altered in the various states and, therefore, not such a uniform law. Polley is deputy general counsel at Schlumberger, an oil-field services firm in New York.

UCITA's proponents claimed ABA backing was not vital, but opponents say that without ABA support, UCITA is seriously wounded, if not dead. "Pushing it forward in anything close to its current form is like dragging a dead whale back to sea," said Bruce Barnes, an IT consultant.

UCITA is designed to set uniform terms and conditions for software sales and electronic transactions. The measure is supported by suppliers and trade groups, but opponents believe it gives suppliers too much power in contracts.

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