On My Mind

Article excerpt

Coming Soon to a Legislature Near You!

The Commonwealth of Virginia and my former home state of Maryland have been in a race recently to become the first in the country to pass an arcane piece of legislation called UCITA. The governors and key legislators in both states are promoting this law because they believe it will be good for their information-technology economies. While I join them in supporting electronic commerce, it seems to me that with UCITA they've been sold a bill of goods.

UCITA is the Uniform Computer Information Transactions Act, a proposed law that purports to standardize and clarify rules of commerce for electronic information. Whereas the Uniform Commercial Code (UCC) governs contracts and provides default rules for the sale of goods, UCITA redefines the sale of computer software and "computer information" as the licensing of "intangible" information. This shift would unravel the fair use and first sale doctrines that undergird and stabilize the free flow of information and the equity of public access to knowledge.

What's wrong with UCITA?

Libraries have always benefited from the first sale doctrine, in which the Supreme Court established that once goods are sold, the seller gives up any rights to those goods. Thus, libraries may loan books, ship them away to fulfill interlibrary loan requests, or sell them in used booksales. Selections may be copied by library customers under the fair use doctrine of copyright law, and excerpts may be quoted and comparisons made with other titles in book reviews.

On the other hand, if UCITA passes in even one state, all kinds of questionable practices may become legal, or may have greater legal standing under UCITA and in the inevitable lawsuits that will spring up over the issues. Because consumer protection and copyright laws developed over many decades can be simply sidestepped by contract provisions:

* Critical reviews and comparisons could be banned.

* Loaning or copying could be prohibited.

* Reverse engineering (which is a standard practice critically important to software developers) could be stopped.

* In the case of a breach of contract, licensors could legally turn off your access to their products remotely by using a robotic "time-bomb" embedded in the software you have purchased, euphemistically called "electronic self-help."

Imagine a contract in which you subscribe to Westlaw for three years because you want to access the case law for your state. At the end of the first year, Westlaw decides to eliminate your state from its mix of products. Under UCITA, you would still be obligated to pay the balance of the 3-year contract.

What can you do about UCITA?

In every state in the country, librarians need to be alert for the introduction of UCITA. In addition to Maryland and Virginia, it has already been introduced in Hawaii, Illinois, Oklahoma, and the District of Columbia. If it is introduced in your state, please alert Miriam Nisbet, legislative counsel at the ALA Washington Office (mnisbet@alawash. …