License to hide
UCITA „reforms“ would still keep consumers in the dark about the terms of their software licenses until after they pay
UCITA’S (Uniform Computer Information Transactions Act) proponents have long hawked it as the law for the digital age, but it’s now clearer than ever they actually want it to help the software industry turn back the clock to a pre-Internet world.
When we last checked in on UCITA, you may recall it was not faring well. Its chances of being enacted by any more states were seriously damaged by a very negative report about UCITA issued earlier this year by an American Bar Association-appointed working group to analyze the law and help the ABA decide whether to support or oppose it. As an ABA rejection would almost surely end the chances for UCITA to be enacted in any more states, it was believed that a number of amendments were being prepared to address the ABA working group’s concerns. Those amendments would be presented to the National Conference of Commissioners on Uniform State Laws (NCCUSL), the organization that originally drafted UCITA, at its annual meeting at the end of July.
The meeting is now over and NCCUSL has published the 38 amendments that were approved during it. In looking them over, I and other UCITA opponents have found nothing that comes close to changing our minds. This is hardly a surprise, of course. I’ve long been of the opinion that trying to fix UCITA is like trying to raise the Titanic to convert it into a jumbo jet — starting over from scratch would be much, much easier.
Nonetheless, UCITA proponents have declared that these few amendments have magically transformed it into a fair and balanced act. And a few journalists, who can be forgiven for not actually having read this monster or its amendments, bought that spin. So, without going into a painful point-by-point analysis, let me just say that all my previous assessments of UCITA still stand. Some of the amendments are indeed an improvement over what those provisions said before; others are the most pathetic of token gestures. For example, to respond to the working group’s assertion that the law should be completely redrafted because it’s so hard for even for a blue-ribbon panel of lawyers to understand, NCCUSL basically added a few subheads.
All the loopholes that software industry lawyers will need to craft their sneakwrap license agreements to permit remote disabling of software, prohibit public review and criticism of products, demand additional payments for licenses transferred in a corporate merger, etcetera, etcetera, etcetera, are all still there.
Of far more interest to me than the changes that were made to UCITA by NCCUSL is one change that wasn’t made. The ABA working group had criticized UCITA’s approach to letting vendors hide their license agreements until after the customer pays. Since licensors can now easily make their terms available on their Web sites, the ABA report pointed out, “There is no longer any economic justification for failing to do.” After all, vendors of “computer information” products and services should certainly be capable of using the technology for something that simple.
Perish the thought. While bending over backwards to at least give the appearance of responding constructively to the other top ten concerns of the ABA working group, NCCUSL’s UCITA drafting committee scorned the idea that software publishers should have to make their terms available before the purchase for customers who want to see them. The ABA working group and other prestigious law-making bodies — the majority of state attorneys general, consumer groups, high-tech engineering societies, and IT professional groups, all of whom have made the same point — are all wrong, according to NCCUSL. Such a requirement would be overly burdensome on the Microsofts and AOLs, NCCUSL decided. Guess where the NCCUSL commissioners got that idea.
In reality, of course, posting their license agreements would ultimately save most software companies time and money because it’s the kind of task the Web was made to do. Most online services, including Microsoft’s MSN, already make their terms available for prospective customers to see — AOL has long been a conspicuous exception in that respect. So what is the real reason the software industry lobby is fighting this idea so hard?
The answer is simple: The companies backing UCITA don’t want their customers to be able to shop for the best terms. Today there’s little point in reading most software licenses because they are all equally bad. Naturally, even if the licenses were always openly available, your average consumer wouldn’t bother to read through all that legal mumbo jumbo. But a few customers would, and so might product reviewers, consumer groups, and professional societies, sharing that information with others on the Internet. That in turn could provide software publishers with an incentive to offer better terms than their competitors.
It just makes sense that the licensing model for the digital age should employ the technology in a way that makes it fairer and less costly for all concerned. The UCITA model is as obsolete as the retail software stores that gave it birth. Yet it’s now clear that the law’s proponents are willing to risk any chance of further enactment in order to cling to that outmoded concept.
At its heart, UCITA is about giving all the force of a legally binding contract to its sponsors’ shrinkwrap/clickwrap license agreements. But as we can see, it’s also about making sure the customer has no choice in the matter, not even the ability to see the “contract” until after the deal is done. If that’s your idea of how the digital age should work, you’re welcome to it. If it’s not, go to and consider joining me and other Americans for Fair Electronic Commerce Transactions in the AFFECT coalition.
