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States spar over stalled software act

A controversial initiative to standardize U.S. state laws on software licensing faces a crucial vote this week at a legal gathering in Arizona.

A controversial initiative to standardize U.S. state laws on software licensing faces a crucial vote this week, as battle-weary consumer advocates and tech companies pin their hopes on a legal gathering in Arizona.

The National Conference of Commissioners of Uniform State Laws (NCCUSL) is devoting part of its current annual meeting in Tucson to debating amendments to its Uniform Computer Information Transactions Act (UCITA), a proposed code to govern software licenses and other digital information transactions.

The amendments come as momentum leaches from the beleaguered initiative, which is meant to bring the 50 states' various and conflicting software licensing laws into alignment. Should they be approved, the amendments may further diminish UCITA's chances for widespread adoption as both software publishers and consumer advocates balk at the proposed compromises.

UCITA (pronounced you-see-ta) has met with fierce criticism since its introduction three years ago. Consumer groups, legal associations and library organizations have excoriated the proposed act for the freedom it would grant software makers to restrict the use of software and dictate the settlement terms for conflicts.

About half of the U.S. state attorneys general have come out in opposition to the law, joining the Consumer Project on Technology, the Consumers Union, the Electronic Frontier Foundation and the Free Software Foundation. Supporters include Microsoft, America Online and the Business Software Alliance.

Under the lash of vocal opposition, early versions of the act have languished in state legislatures. Virginia and Maryland approved versions of UCITA shortly after it was first proposed, but elsewhere it has died in committee.

"I think that everyone's growing weary," said Carol Ashworth, the UCITA grassroots coordinator for the American Library Association (ALA), which has called the amendments insufficient and loophole-ridden. "There's still a tremendous difference of opinion about the amendments among the commissioners themselves. They spent the first two hours (on Monday) talking about just the first three amendments."

The approximately 350 commissioners resume debate on the amendments Tuesday afternoon and expect to vote on them Thursday. States get one vote each, regardless of how many commissioners they send to the meeting. Once measures and amendments make it to the final vote, it is extremely rare for them not to be approved.

Even if the amendments sail through a Thursday vote, it would not spell the end of UCITA's challenges. At that point, the amended act would still face the state-by-state battle which has held it back until now.

Amid Monday's debate, NCCUSL (pronounced nikoozl) representatives reached by phone sounded less than optimistic about the act's progress.

"We're all in a kind of wait-and-see mode," said John McCabe, NCCUSL's chief counsel. "We have hopes, but that's it. Even if your own conference accepts the amendments, that's not a slam dunk. We'll see where they go from here."

Among the amendments being debated in Tucson:

• Self-Help: As UCITA now stands, software licenses can outline binding alternatives to litigation that may thwart lawsuits against vendors. These so-called self-help measures have let software companies shut down a piece of software if they have not been paid for or if they claim a breach of contract. According to NCCUSL, a proposed change to UCITA would abolish provisions for self-help. The ALA claims it would still permit loopholes for self-help.

• Opting In, Opting Out: A proposed change removes a section of UCITA that limited licensees' ability to opt in or out of UCITA.

• Known Defects: Critics lambasted UCITA for relieving software vendors of liability for selling software with known defects. A new section "expressly clarifies the applicability of other law to provide appropriate remedies for cases where known material defects are undisclosed," according to NCCUSL.

• Consumer Protection: Consumer advocates charged that UCITA would strip people of legal protections they enjoy under current state law. A new section would spell out that existing consumer protection law trumps UCITA when the two come into conflict.

• Public Criticism: Free-speech advocates complained that UCITA let software makers prohibit public criticism of their products. A new section says that any provision limiting criticism rights is not enforceable, according to NCCUSL.

• Reverse Engineering: A new section spells out that reverse engineering is permissible for the purpose of making products interoperable with each other. The amendment was a sine qua non for Sun Microsystems, NCCUSL said.

On Thursday, the NCCUSL concludes its meeting and will make a final determination on the amendments. But there was some question of how closely the industry will be watching the outcome of the amended act.

"The software industry quite strongly supported this because in the beginning it had all the things they wanted," NCCUSL's McCabe said. "When you lose the self-help remedy, there's a loss they don't feel is in their interest. If the proponents lose something like that, they become less excited about it."