Why We Still Oppose UCITA

An attorney for Red Hat recently asked me to join her in requesting that the National Commissioners on Uniform State Laws (NCCUSL) reverse their 1999 decision to adopt UCITA, the Uniform Computer Information Transactions Act.

I've commented before on UCITA [see LJ, June 2002]. Readers of this column will recall that UCITA is a model code intended to be adopted by all states, so there is uniformity within software licensing law. UCITA provides default rules that apply when a software license omits essential terms. Another purpose of UCITA is to define what license terms are against public policy and thus cannot be enforced, even if they are included in a license.

On behalf of the Open Source Initiative, I wrote to the NCCUSL to oppose UCITA. I did so because UCITA does not address yet many of the major concerns of licensors and licensees of open-source software. Even though recent amendments to UCITA have begun to recognize our unique issues, the proposed law remains flawed, incomplete, confusing and biased toward licensors of proprietary software.

The drafters of UCITA have proposed several amendments to address our issues, but they still struck out with us. Here's what they proposed and why we continue to oppose it.

One recent amendment provides that “a copyright notice merely giving permission to use the software that is not part of a contract is not within UCITA.” This either is a truism (federal copyright law preempts state contract law anyway) or is inapplicable to the many open-source licenses intended to be contracts. I understand that this amendment purports to address the concerns of people using the GNU General Public License (GPL), a license whose author urges that it be treated exclusively as a copyright license. What about all the other licenses that satisfy the Open Source Definition (www.opensource.org/docs/definition.php) and whose authors intend to form a contract? This provision is of no help; it simply does not matter.

Another amendment excuses licensors from implied warranty obligations “if the software is free (no intent for profit or commercial gain from the transfer of the copy or from controlling use or distribution of the copy).” This amendment relies on a commercial definition of “free” as “free of charge” rather than the far more important conveyance of rights to use, copy, modify and distribute software, along with access to the source code that makes those rights meaningful.

The latter concept of freedom underlies the principles of the Free Software Foundation (www.fsf.org) and the Open Source Initiative (www.opensource.org), but it apparently plays no role in UCITA. The actual language in the UCITA provision is vague and confusing, relying as it does on phrases like “intends to make a profit” and “acts generally for commercial gain”. It will allow proprietary software vendors who hide their source code and limit the rights to copy, modify and distribute software to obtain the benefit of warranty exemptions, even though they actively obstruct their customers' ability to make the software “merchantable” and “fit for a particular purpose” by doing so.

A third amendment says reverse engineering for the purpose of interoperability cannot be prohibited by a license. This is an important step—albeit a baby step—toward affirming the fair use rights so badly damaged by the passage of the Digital Millennium Copyright Act. Unfortunately, because of federal preemption this provision is probably of limited effect. Furthermore, this idea is not the same as a strong statement by NCCUSL that a license provision that restricts or limits any fair use rights to software is unconscionable and against public policy. Such a broad provision would not solve the preemption problem, but it would make a valuable statement that may encourage Congress to restore the public benefit objectives that underlie copyrights and patents in the US Constitution. I am afraid that the current weak and limited UCITA amendment relating to reverse engineering will lull people into thinking that their former rights have been restored.

I believe that it will be important to start afresh with UCITA and consider the new environment in which open-source software competes against proprietary, closed software marketed by wealthy companies. UCITA is not particularly helpful to guide courts in interpreting or enforcing open-source licenses or to guide Congress in restoring fair use rights to the public. Without that, the Open Source community doesn't need UCITA.

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