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 COLUMN
UCITA questions could lead to purposefully poor design of ordinary goods IF THERE'S A special law just for software, should it cover a sewing machine that has an embedded stitching program? The good folks who brought you UCITA (Uniform Computer Information Transactions Act) are grappling with that question right now, and their final answer may lead to production of ordinary goods that are poorly designed on purpose.
NCCUSL is considering revisions to Article 2 of the Uniform Commercial Code, the law governing the sale of goods in this country for more than 50 years. All sides agree that Article 2 could use some updating, but UCITA's existence is a complicating factor. Until recently, courts have rather routinely applied Article 2 to treat cases involving software as they would other types of goods. The whole point of UCITA for the software industry is to get special dispensation for the industry's products so they won't be subject to the same standards as other goods. The industry has lobbied hard to get software removed explicitly from the new Article 2, particularly because more states are likely to pass it than enact UCITA. And what the software industry wants, NCCUSL always seems to deliver. The drafting committee for revised Article 2 is attempting to draw a line between software and ordinary goods in its "scope" section. The debate resembles the UCITA scope debates of a few years ago, which is disturbing in itself because UCITA wound up making it easy for computers and other high-tech hardware to come under its auspices. Under the scope language presented at a committee meeting last month, the new Article 2 would leave a very large gap for UCITA to fill. Such a large gap, in fact, that engineering experts fear many low-tech products can and will be redesigned to fall into it as well. Both UCITA and Article 2 drafters have been laboring under some false assumptions about what embedded systems are and aren't in today's technology, says Philip Koopman, a professor of electrical and computer engineering at Carnegie Mellon University, in Pittsburgh. "What I'm worried about is that in fighting this desktop software battle out, they are going to affect the embedded world without meaning to," says Koopman, who teaches embedded system design and has developed a number of commercial products, including the security algorithms used in the remote entry devices for many cars. "Every attempt I've seen in UCITA or Article 2 language to make a desktop/embedded distinction can be easily circumvented by an engineer who has been ordered to make sure a product falls under UCITA -- in other words, gratuitously building an embedded system to be a UCITA 'computer' just to gain UCITA protection." Drafters of the new Article 2 use a sewing machine with an electronic stitching controller as an example of an "integrated product" that would still qualify as "goods" governed by the revised law. That's based on the assumption that the stitching program itself would not be available separately from the machine. But Koopman and others point out there's already at least one sewing machine on the market that comes with an LCD display and floppy drive, so it would be easy for that manufacturer to get itself under the more vendor-friendly rules of UCITA. The same could be true of virtually any product with a modicum of smarts, such as cell phones, cameras, cash registers, or home medical devices. Koopman fears it is dangerous to give manufacturers legal incentives to make design decisions that they wouldn't make otherwise. "If there is reduced legal exposure for pushing software to add more features at the possible expense of reduced reliability, then companies might well add that complexity," he says. "Do you really want embedded software to be more robust than current desktop software?" The simple fact is that there is no technologically sound way to draw a legal line between goods and software. The easy solution for NCCUSL, of course, would be to just leave Article 2's scope the way it's been for 50 years so that it could still be applied to software transactions in states where UCITA is not enacted. But because that's not what the software industry wants, what do you think the chances are of NCCUSL doing that? Pretty slim, particularly when you consider that, along with the Microsofts and Adobes, the commissioners might have to buck the sewing machine lobby. Got a complaint about how a vendor is treating you? Contact InfoWorld's reader advocate, Ed Foster , at gripe@infoworld.com.  RELATED SUBJECTS  Business IntelligenceBusiness NewsE-CommerceDiscuss this article in our online forums MORE > SPONSORED WHITE PAPERS 
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