Magazine article Information Today

Pay Attention to State Legislation

Magazine article Information Today

Pay Attention to State Legislation

Article excerpt

Most of the Legal Issues columns I've written have dealt with matters of federal law. In general, issues that most often affect the information community arise from the actions of Congress or the federal courts. These bodies have the lion's share of jurisdiction over copyright and intellectual property; antitrust; national and international commerce; ADA and discrimination; and First Amendment concerns such as Internet filtering, the USA PATRIOT Act, and freedom of speech.

As such, the actions taken by state legislatures are often ignored by many information producers and consumers. Because our attention is focused on Congress and the federal courts, state actions that have the potential to significantly affect information industry practices can fly under the radar-perhaps until it's too late. As the 2003 legislative season heats up, three important proposals that merit immediate attention are making the rounds of the state legislatures.


The first of these is the Uniform Computer Information Transactions Act (UCITA), which was drafted in 1999 by the National Conference of Commissions on Uniform State Laws. The act's intention is to create a consistent set of rules governing computer-software, database, and digital information licenses, particularly "shrink-wrap" and "click-wrap" licenses.

During the drafting process, criticism arose that UCITA favored the interests of large commercial software publishers at the expense of consumers. The critics argue that the act would strengthen publishers' hands in drafting restrictive license terms. This could limit users' existing consumer-protection, privacy, contract, warranty, and intellectual property rights (particularly fair use and first sale). Proponents respond that UCITA clarifies and organizes existing law, rather than changing it. UCITA has been enacted in two states (Virginia and Maryland) and is before the legislatures of an additional 12.

Electronic Government Services Act

The second of these proposals is the Electronic Government Services Act, drafted by the American Legislative Exchange Council, a bipartisan association of conservative state legislators. This act is intended to prevent government from competing with the private sector in providing "electronic commerce services."

Critics of the legislation are concerned that its broad language could prevent agencies from offering information and other services on government Web sites. The law could conceivably restrict state tourism officials from promoting public events in competition with newspaper Web sites or limit court sites from providing opinions in competition with Lexis and Westlaw. This proposal has not yet been enacted but is before the Ohio and other state legislatures.


The Model Communications Security Legislation, known as "Super-DMCA," is being promoted by the Motion Picture Association of America. The proposal is intended to strengthen existing Internet piracy and cable television theft laws by regulating communications services and "unlawful access devices." Again, however, overly broad language is raising concerns that the act could regulate virtually all forms of communications services, including the Internet, cable TV, telephones, etc. Super-DMCA features expansive laundry lists of controlled activities ("receive, intercept, disrupt, transmit, retransmit, decrypt, acquire, facilitate ... without the express consent of the communication service provider") and provides both civil and criminal penalties. …

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