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 NEWSUCITA pitfalls By Ed Foster August 18, 2000 1:01 pm PT Here is my short list of the most serious consequences that can result from general enactment of UCITA in the states
UCITA's fundamental purpose of endorsing shrinkwrap licenses will make many manifestly unfair terms enforceable in situations where today a judge would be free to ignore them. Remote disabling of software UCITA's "electronic self help" and "automatic restraints" provisions give software publishers the right to surreptitiously include time bombs and backdoors in their software, exposing customers to enormous security risks. Increased legal costs UCITA creates a host of surprising outcomes under its default rules, forcing corporate customers, small developers, independent consultants, b-to-b dot.coms, and others to bring in the lawyers for what otherwise could be a handshake agreement. E-commerce impact UCITA's vendor-friendly rules for e-commerce will conflict with other state, federal, and international efforts to bring order to the Internet, creating less uniformity of law rather than more and exacerbating consumer distrust. Software industry competition Disclaimed warranties and other protections for the software industry provide disincentives for companies to improve product quality and encourage the premature release of buggy products. Bug disclosures UCITA offers protection from lawsuits to software publishers that knowingly distribute software with bugs, even if they hide the knowledge from users who suffer major damage as a result. Sneakwrap modifications UCITA allows publishers and on-line services to materially modify terms of an existing relationship by posting changes on their Web site, changes that are unlikely to be noticed by many users. Scope of law UCITA threatens to bring its anti-consumer rules to a variety of industries beyond software and even beyond high-tech fields. Freedom of information UCITA helps make it possible for commercial entities to erect barriers against free exchange of information through libraries and academic institutions and even to put restrictions on criticism of their products. Transfer of ownership Common shrinkwrap license terms prohibiting all transfers of ownership in a copy would become enforceable under UCITA, undercutting basic principles of copyright law and possibly forcing companies to repurchase software they already have after corporate acquisitions, mergers, or restructuring. Reverse engineering UCITA could allow software publishers to unilaterally outlaw all forms of reverse engineering, even when it's done only for reasons of interoperability. No pre-sale access to terms Software publishers are still allowed to take the traditional "terms inside the box" approach denying customers opportunity to review terms before they buy, even in the case of online sales where providing the terms would be easy. It's important to realize that these are not just nightmare scenarios that could possibly occur in some distant future. Real-world examples already exist of software publishers and others at least attempting to implement even the worst of these practices, prior to UCITA passing in any state. Should the law be widely enacted, such attempts will presumably invariably be successful. SPONSORED WHITE PAPERS 
SPONSORED LINKS
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