UCITA draws legal fire

A faction within the American Bar Association had hoped to convince the group at its annual meeting this week to consider joining opponents of the controversial plan, known as the Uniform Computer Information Transactions Act, or UCITA. The measure would update the commercial laws that govern transactions across state lines, beefing up intellectual property rights and so-called shrink-wrap licenses that come with many software products.

The ABA was expected to vote on a resolution to oppose the measure on Monday or Tuesday during its annual meeting. However, the issue has sparked heated debate within the organization, and the resolution is expected to be withdrawn. Instead, the ABA is in the process of scheduling a meeting with the National Conference of Commissioners on Uniform State Laws (NCCUSL), the group that drafted the measure, to investigate UCITA and its potential effects.

In exchange, NCCUSL has agreed not to push the measure in state legislatures until after the meeting, which will probably take place sometime in November.

"The reason we're involved is our technology people have been very concerned for well over a year and a half about UCITA," said ABA member Hervey Levin, a Dallas-based attorney who's a member of the committee that proposed the resolution. "They've been watching it and getting increasingly nervous."

Though UCITA measures have been approved in Maryland and Virginia, they've come under fire for favoring corporate interests over consumers and leaving purchasers of products with little recourse when it comes to faulty software. Many software makers hope to rely on UCITA to protect their efforts to control reverse engineering of their products or let them dictate the courts where people who sue them must file. For example, a license on a Corel product required those who purchased the software outside of the company's homeland of Canada to only bring suit in Ireland.

NCCUSL officials said UCITA has been in the works for years, and the attorneys should have come forward sooner. "It is a little bit alarming from our perspective," said John McCable, NCCUSL's legal counsel.

The proposed ABA resolution asked that the UCITA be withdrawn in states where it's currently being considered "and extensively revised" to address consumer rights and the licensing of intellectual property.

Although ABA doesn't have the authority to stop the measure, it is the largest legal organization in the world, and its official opposition to the act could provide fodder for those who are fighting UCITA.

UCITA has run into resistance from many groups, including nearly half of the country's state attorneys general, who have come out against the bill.

Consumer organizations have claimed UCITA lets software makers avoid liability for defective products, overwrite existing copyright laws, and hold consumers to strict jurisdiction rules. Opponents also worry UCITA gives software publishers permission to remotely turn off their software on a consumer's machine.

The measure failed to pass in the seven states where it was introduced this year. Those include Arizona, Illinois, Maine, New Hampshire, New Jersey, Oregon and Texas, plus the District of Columbia. Some of those states are still studying the issue and may vote during their next legislative session.

But supporters, which include Microsoft, America Online and the Business Software Alliance, say they need the measure to give muscle to their efforts to protect their products in the digital age as piracy and intellectual property theft become more prevalent.