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UCITA Stalled At State Level
OscarGunther writes "Four states have passed anti-UCITA laws and Massachusetts may soon become the fifth. Meanwhile, only two states have adopted the Uniform Computer Information Transactions Act, which gives software vendors all the benefits and none of the burdens of the consequences of publishing their software. The details can be found at ComputerWorld and an opinion piece by Frank Hayes can be found here."
From the site:
looks like this was drafted by Microshaft, BSA, **AA's and our beloved government... oh wait.
You can also read from the following site:
EFF PAPER
Solution, lets remove shrink wrapped licencing period. That's like buying a car- THEN signing th e contract.
HEre's another one:
This is familliar. Doesn't it sound like an extention to the DMCA? Hmmm...
Basically UCITA tries to say that software makers aren't liable for their software. Then it extends to also the platform its running on.
If UCITA passes some things that could be legal:
1.) If the winword box says it has a spell checker in it, but the program doesn't, you still can't return it.
2.) If you car has a computer the manufactor isn't responsible if it malfunctions. In fact some interpretations are that the manufactor isn't responsible for anything because it has a computer in it so they can do safety cts.
Here is some wonderful information about
UCITA
Nope.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
If enough of the states vote for a law (such as "no UCITA" or "Alcohol is legal") and want it to be The Law of the Land, Congress can be essentially left out of the picture.
The goal of the UCITA proponents was to make UCITA part of the Universal Commercial Code... The UCC laws are the basic laws of business that are state laws that are exactly the same in all 50 states, so that a somebody writing a typical business contract written in Texas is certain that it holds water in Maine.
Well, that hasn't gone over well... some states have made it clear that they're never going adopt this law. So the fallback is to try to get this law passed in a handful of states, and then let contract-writers use a "choice of law" clause (You've seen those, they're the part that says that if you're going to sue, you have to sue in the contract-writer's favorite state and not yours...) to force UCITA's terms on consumers that way.
Well, that's not going well eitter.... Some states are adopting "Anti-UCITA Bomb Shelter" laws that affirmatively give the rights to consumers that UCITA tries to deny, and affirmatively gives that state's residents the right to sue in their home-state courts over the issues that UCITA tries to block, and effectively overpowering a choice-of-law contract clause with a state law. UCITA is powerless in any state that has a "bomb shelter law" on the books, which effectively means that UCITA's longarm powers to reach out of the states its passed in become voided.
If you're not a fan of what UCITA represents, it's important that your state not only reject UCITA when the lobbists come calling, but that they also pass a bomb shelter law to prevent Maryland or Virgina's UCTIA laws from being used via a choice-of-law clause in your state.
>I've not followed this issue so I don't know which two states have adopted this, but I can guess one of them might be Washington state.
While that is indeed a logical guess, the article names the two as Virginia and Maryland.
ato
Follow the hyperlink to http://www.ala.org/Content/NavigationMenu/Our_Asso ciation/Offices/ALA_Washington/Issues2/Copyright1/ UCITA/States.htm that the parent post all the way back there gave to see what has happened in all 50 states. Most of the states that weren't listed here have either had either no legislative activity friend-or-foe towards UCITA, or saw it introduced briefly after it first came out only to let it die unacted upon and never brought up again. Both Illinois and California fall into the latter category.
No, thankfully, *not* Washington State. Try North Carolina and West Virginia, at least according to the American Library Association's web site
Lemon curry?
You may relax, the two states who have passed this law aren Maryland and Virginia. However, the problem is that the UCITA would allow a certain Washington State corperation to put a choice-of-law clause into its EULA saying that any lawsuit based contract is to be judged by Maryland or Virginia law using a court in one of those two states, which effectively would give those state laws "longarm" power into other states. "Bomb shelter" laws need to be passed in non-UCITA states in order to prevent this practice.
Federal law is superior to state law: ... shall be the supreme Law of the Land..." See U.S. Const. art. VI, cl. 2.
"[t]his Constitution, and the Laws of the United States
It doesn't matter how many states enact anti-UCITA laws because state laws are just that: state laws, unique to each state, and completely unrelated to each other; and if Congress were to enact a federal UCITA law, all of those state anti-UCITA laws would be invalid.
Also, if Congress were to even partially enact UCITA or even something similar to it, those state laws would be invalid as well. This is what is known as the "Dormant Commerce Clause." The Constitution gives Congress the ability to "regulate Commerce with foreign Nations, and among the several States..." See U.S. Const. art. I, Â 8, cl. 3.
The courts have held that since congress is given the sole authority to regulate interstate commerce, any state laws that conflict with federal ones regulating interstate commerce, or even state laws that attempt to regulate in an area of interstate commerce in which congress has expressed its desire to "occupy the field," are invalid.
What you're talking about are not state or federal laws, they're constitutional amendments; things which will change the actual text of the Constitution.
For that to occur, first, the amendment must be proposed. For Congress to do this, the amendment must be introduced in one house, then pass both houses with a two-thirds majority. For the states to propose amendments, two-thrids of the states must call for a constitutional convention. After proposal of an amendment, it must be ratified. See U.S. Const. art. V.
For ratification to occur, three-fourths of the states must ratify it. See id.
Since a supermajority is needed for ratification, it almost never happens, especially for something that the vast majority of people couldn't care less about (like stopping UCITA). The last time an amendment was successfully ratified was in 1992, the 27th amendment; which was proposed by the first Congress in 1789, and took a whopping 200 years to be ratified.
Hey, if you live in Mass, write your state representative already! Barely anyone does, so they'll probably even listen to you! I'm going to dump some information I found on the Mass.gov site, and you can use it to find your reps and write them.
First of all, I believe the matter under discussion is House 1622, Petition of Ronald Mariano relative to the interpretation of computer information agreement contracts. Though as you can see from the JCCL homepage, there's lots to choose from and I'm not shocked they didn't act at the hearing on June 2.
If you don't know who to write to, visit the Who are my elected officials? page and type in your addres. And be sure to pick the STATE reps, as they're listed alongside your US reps in a way that's less-than-clear (to me anyway).
I haven't cooked up a boilerplate letter or anything... I figure I'll just synthesize something from this article and the EFF page regarding UCITA. If anyone is more familiar than me with the Mass state legislature, and can let me know if House 1622 is actually what we want, please get in touch.