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UCITA proponents claim that it's not illegal and, in fact, the UCITA actually would impose stricter limits on its use. I'm not convinced, but ...

http://www.nccusl.org/update/uniformact_overview/u niformacts-ov-ucita.asp

"Under current law software and information can be recovered by electronic means if there is no trespass or breach of the peace. Thus electronic self-help in the event of a material default by the licensee is unrestrained under current common law. UCITA does not permit electronic self-help unless the licensee separately negotiates and assents to it and imposes very substantial due process and other limitations on its use."

See: http://www.nccusl.org/nccusl/UCITA-2001-comm-fin.h tm. It has a report that discusses many aspects of UCITA.

Open source developers face new warranty threat
Rosen and Kunze were attempting to secure an exemption from implied warranties of merchantability, fitness, or non-infringement for a computer program, "provided under a license that does not impose a license fee for the right to the source code, to make copies, to modify, and to distribute the computer program."
The proposal would have brought the rest of the States in line with Maryland.
The replacement version, which reads "or to distribute..." is joined by a provision that nullifies the exception for software licensed to consumer

The complete text can be found here....
a) Except as provided in subsection (b), the warranties under Sections 401, and 403 do not apply to a computer program if the licensor makes a copy of the program available to the licensee in a transaction in which there is no contract fee for the right to use, make copies of, modify, or distribute copies of the program.
(b) Subsection (a) does not apply if the copy of the computer program is contained in and sold or leased as part of goods or if the transaction is with a consumer licensee that is not a software developer.

But State governments cannot lobby other State governments to pass laws. That is an attempt to regulate interstate commerce which is a power explicitly granted to the Federal gov't by the Constitution, and therefore illegal for states to exercise.

Are you sure that states can't try to influence other states? That strikes me as a far cry from regulation, and presumably there are many matters where commerce isn't affected. Evidence, please!

Also, in this case the states aren't really trying to regulate each other; they're just coordinating changes to their own state law. My notion is that they do this all the time. Note, for example, the existence of the Uniform Commercial Code. Or the National Conference of Commisioners on Uniform State Laws. So it sounds like the constitution is applied with more subtlety than you (and a disapointing other number of people on Slashdot) seem to think it should be.

The Uniform Commisioner's page on UCITA is not as informative. The Computer Professionals for Social Responsibility have a page which has not been updated for some time.

Apple was sued some time ago for dropping software support for the Lisa. As I understand it, the case was settled out of court. Whether the settlement included consequential damages, I don't know. The settlement wasn't exactly top news.

Which points up a critical fact: there have been, to the best of my recollection and the limits of my research capabilities, no viable software vendor hauled before a judge because of non-support because no company is stupid enough to let the situation get to that stage. Software vendors knows that it's far cheaper to pay money on technicians, developers, gurus, and consultants to fix the problem than it is to pay lawyers even more money to dismiss the complaint. The fix-the-problem route usually results in a satisfied customer, while the fix-the-law results in a pissed-off customer.

Besides, it's rather easy to see who has the $100,000 required to press such a suit, and sidetrack the legal action. Joe Six-Pack won't have that kind of money, and District Attornies have a high enough case load without taking on "petty problems."

The real problem is not with lawsuits, but the underlying statutes that regulate commercial transactions. The Uniform Commercial Code (UCC) doesn't work well with software and data collections. So there is a push to create a UCC-like statute in the 50 states that does for software and data what the UCC does for tangible products. Unfortunately, the proposed model statute (liked only by the SIIA, formally the Software Publishers Associaton, and hated by a long list of others) is flawed; see CPSR's fact page for more details. From the horse's mouth, the summary by the Uniform Acts Commissioners, as well as a Q&A page on the NCCUSL site.

Apple was sued some time ago for dropping software support for the Lisa. As I understand it, the case was settled out of court. Whether the settlement included consequential damages, I don't know. The settlement wasn't exactly top news.

Which points up a critical fact: there have been, to the best of my recollection and the limits of my research capabilities, no viable software vendor hauled before a judge because of non-support because no company is stupid enough to let the situation get to that stage. Software vendors knows that it's far cheaper to pay money on technicians, developers, gurus, and consultants to fix the problem than it is to pay lawyers even more money to dismiss the complaint. The fix-the-problem route usually results in a satisfied customer, while the fix-the-law results in a pissed-off customer.

Besides, it's rather easy to see who has the $100,000 required to press such a suit, and sidetrack the legal action. Joe Six-Pack won't have that kind of money, and District Attornies have a high enough case load without taking on "petty problems."

The real problem is not with lawsuits, but the underlying statutes that regulate commercial transactions. The Uniform Commercial Code (UCC) doesn't work well with software and data collections. So there is a push to create a UCC-like statute in the 50 states that does for software and data what the UCC does for tangible products. Unfortunately, the proposed model statute (liked only by the SIIA, formally the Software Publishers Associaton, and hated by a long list of others) is flawed; see CPSR's fact page for more details. From the horse's mouth, the summary by the Uniform Acts Commissioners, as well as a Q&A page on the NCCUSL site.

Here it is straight from the source.

The full text of UCITA, as passed by the NCCUSL (Nat'l Council of Commissioners on Uniform State Laws) is available online, as is a FAQ-type document written up by the NCCUSL.

It seems to me that this is once again a case of law being drafted by idiots. It really seems to me like the NCCUSL thinks they're doing the right thing by consumers, that they haven't thought through the implications of things, or how courts would be forced to rule on the issues. They claim that they are giving lots of new rights to consumers, that they are not outlawing reverse engineering or license transfers.

There are a couple of things in the FAQ that it seems to me can be universally agreed upon as being obvious.

• Federal law supercedes state law. This means that if any provision of the UCITA contradicts Federal law, then that provision is invalid.
• Unreasonable terms of a contract cannot be enforced. This means that if a provision of a software contract states that you shall never eat tomatoes again, it can be thrown out. It is up to the courts to determine what is "unreasonable".

After reading through the section on transfers, it seems to me (IANAL) that it does not outlaw transfers of licenses. Rather, it says that such transfers may be outlawed by a term in the license. AFAIK, this has always been the case. In the case of mass-market license, any such transfer-prohibiting term must be "conspicuous" (i.e. one of those annoying SECTIONS IN ALL CAPS).

Reverse engineering: UCITA explicitly states that it does not supercede existing "trade secret" laws. I'm having a hard time finding other areas of UCITA that would apply to reverse engineering (IANAL). Anybody care to help out on this one?

Mostly, I just tend to be a bit wary of things that scream, "THIS LAW IS EVIL!" I like to check them out. It doesn't seem to me that UCITA is as evil as it is cracked up to be. (IANAL) If people would refute this, I would appreciate it.

Here are more details. I'm a law student. The UCITA is the "Uniform Computer Information Transactions Act." Ucita.org has no content yet, but there is content at nccusl.org. Several uniform business laws have been developed to standardize the law within the USA. This includes the well-known Uniform Commercial Code, or UCC. There were actually earlier proposals to change the UCC to include something like the UCITA, but those earlier proposals failed.

Common law is the precedent-based law that courts create over time. The UCITA is a statute that is probably going to be passed by state legislatures. As a statute, it will partially reflect the common law and partially not. Like the UCC and other statutes that modify contract law, those who enter contracts can almost always include a side-agreement that specifies which law should apply. You might have a credit card agreement that specifies that certain bodies of law apply, for example.

So instead of distributing code under the GPL or the BSD license, you just distribute the code under a *slightly changed* version of these. You simply add a provision to the "license", or contract, that explicitly says the UCITA doesn't apply, and common law does.

But I said "almost always," right? Yes. The only reason you couldn't is if that provision makes the contract "unconscionable," in violation of public policy, or illegal in some other way. These are steep hurdles that are not climbed without the contract "exploiting poor people" or creating mandatory sexual relations. (!)

Microsoft has pretty much bought off a lot of state legislators on the UCITA. They think it's great, because "software companies" want it. Let them have their stupid law. Most software companies, like Corel, probably will have a non-UCITA clause in their licenses. Just stop buying Microsoft's buggy software and you probably will never have to deal with it other than to say it doesn't apply.

• Allows prohibition against "reverse engineering". This is akin to saying I can buy a car, but opening the hood to see how the engine worked would make me a criminal.
• Allows remotely disabeling software when publisher suspects violation of the terms of the license, without needing a search-warrant. This is akin to saying that if I buy a car that, in the fine print says I'm only allowed to use gasoline from a particular company, and if the car company suspects I used gasoline from a competitor, they could make the car stop working, even in mission-critical situations (like while being on a busy freeway).
• The user isn't necessarily entitled to see the software license contract before agreeing to it. This is like saying that for a car you bought with a "bumper to bumper" warrenty... The warrenty can cover only the paint job (from one bumper to the other), and that you many not find out until you take the car in for repair.
• It is legal for software publishers to prohibit sale or transfer of a software license... Something like saying when you're ready for a new car you need to throw out the old one, because you aren't alowed to sell it.
• The software publisher can limit thier liability to the cost of the software, even if the user has paid for additional services over and above the price of the software. This would be like if (God fobid) if you drove your new car off the auto lot with your family and the car exploded killing everyone except yourself, that the car company would owe you no more than the price of the car, and to collect that, you may be required to call a special refund service that could charge you twice the value of the car for just the phone call... and that even after the car exploded you would still be obligated to pay for the 5-year service contract.

• Allows prohibition against "reverse engineering". This is akin to saying I can buy a car, but opening the hood to see how the engine worked would make me a criminal.
• Allows remotely disabeling software when publisher suspects violation of the terms of the license, without needing a search-warrant. This is akin to saying that if I buy a car that, in the fine print says I'm only allowed to use gasoline from a particular company, and if the car company suspects I used gasoline from a competitor, they could make the car stop working, even in mission-critical situations (like while being on a busy freeway).
• The user isn't necessarily entitled to see the software license contract before agreeing to it. This is like saying that for a car you bought with a "bumper to bumper" warrenty... The warrenty can cover only the paint job (from one bumper to the other), and that you many not find out until you take the car in for repair.
• It is legal for software publishers to prohibit sale or transfer of a software license... Something like saying when you're ready for a new car you need to throw out the old one, because you aren't alowed to sell it.
• The software publisher can limit thier liability to the cost of the software, even if the user has paid for additional services over and above the price of the software. This would be like if (God fobid) if you drove your new car off the auto lot with your family and the car exploded killing everyone except yourself, that the car company would owe you no more than the price of the car, and to collect that, you may be required to call a special refund service that could charge you twice the value of the car for just the phone call... and that even after the car exploded you would still be obligated to pay for the 5-year service contract.

By way of background (missing from the article from InfoWorld), UCITA was until recently the proposed UCC 2B. The proposal to add a provision to the Uniform Commercial Code to deal with software licenses was until recently a joint project of the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The proposal was so awful, and attacked by so many people (especially legal academics!) that the ALI pulled out. This is unusual.

NCCUSL historically is less likely to throw roadblocks in the way of a proposal once a drafting committee says it's done. On the other hand, this one is so controversial, for so many, many reasons, that there is a little hope that the steamroller can be stopped. Uniform Commissioners are political appointees, usually by state governors, so if you or your firm happens to have any pull in your state, a word to the (un)wise might help. Furthermore, even if it passes NCCUSL it then has to be adopted state-by-state, so there's another chance to fight it.

For my account of why an earlier draft was bad for e-commerce (the latest draft is bad in slightly different ways) see 2B as Legal Software for Electronic Contracting -- Operating System or Trojan Horse?.