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ABA Withdraws Consideration of UCITA 92

Posted by michael
from the happy-happy-joy-joy dept.
Cognito writes "AFFECT, Americans for Fair Electronic Commerce Transactions, is reporting that the American Bar Association has withdrawn its consideration for endorsing a resolution to approve UCITA, the Uniform Computer Information Transaction Act. This is a good thing. It's interesting to note that a recently filed law suit would have been prohibited if UCITA were endorsed and adopted as a common law."
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ABA Withdraws Consideration of UCITA

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  • Text of the letter (Score:5, Informative)

    by Anonymous Coward on Wednesday February 12, 2003 @01:50PM (#5288834)
    AFFECT
    PRESS RELEASE
    FOR IMMEDIATE RELEASE
    February 11, 2003
    Contact: Carol Ashworth
    202-628-8410/ 1-800-941-8478
    AFFECT CELEBRATES WITHDRAWAL OF UCITA FROM ABA
    CONSIDERATION
    Seattle, Feb. 11 -- AFFECT, Americans for Fair Electronic Commerce Transactions,
    expressed gratification with the withdrawal of a resolution seeking approval of the
    Uniform Computer Information Transactions Act (UCITA) from the ABA House of
    Delegates.
    "Implicit in the decision not to push for a vote was the recognition that the ABA was not
    going to approve UCITA as appropriate for enactment by the states," said AFFECT
    President Miriam Nisbet. In recent weeks, major sections of the ABA, including
    Business Law, Intellectual Property Law, Litigation, and Tort Trial and Insurance
    Practice, voted to defer indefinitely or to reject the UCITA resolution placed before the
    ABA at its Midyear Meeting. Also, the ABA's Standing Committee on Law and
    National Security last week informed the National Conference of Commissioners on
    Uniform State Laws (NCCUSL), the sponsor of UCITA, that the committee could not
    support UCITA because the act's provisions could "present a significant security
    concern, potentially affecting key aspects of our nation's critical infrastructure." In
    addition, the president of the American Law Institute recently advised the House of
    Delegates that he could not support the effort to have the ABA approve UCITA. ALI
    normally co-sponsors uniform laws with NCCUSL but had withdrawn from
    recommending UCITA in 1999 because of concerns that the act did not meet ALI
    standards in several key areas.
    Nisbet said that she was pleased to hear NCCUSL assure the House of Delegates that it
    has no intention of bringing the act back to the ABA. AFFECT believes the inability of
    NCCUSL to win approval for UCITA from the ABA this year will lead to its rejection in
    Oklahoma and other states where it is currently under consideration. Nisbet said, "The
    failure to pass the ABA hurdle after almost four years of 'fixes' underscores the fact that
    it is time for UCITA to go back to the drawing board."
    AFFECT is a broad-based national coalition of consumers, retail and manufacturing
    businesses, financial institutions, technology professionals and librarians opposed to
    UCITA. AFFECT members have been following UCITA for the past decade and the
    coalition has been involved in every state where UCITA has been legislatively active.
    Americans for Fair Electronic Commerce Transactions (AFFECT)
    1301 Pennsylvania Ave. NW Suite 403
    Washington, D. C. 20004
    V-202-628-8410
    F-202-628-8419
    www.affect. ucita.com.
  • by Picass0 (147474) on Wednesday February 12, 2003 @01:51PM (#5288848) Homepage Journal
    ... these are dark times indeed when the American Bar Association have become good guys.
    • The American Bar Association shouldn't be expected to oppose the right of anyone to sue anyone for anything or nothing. After all, lawyers are always evenly split between being the good guys and being the bad guys and are always against things being simple and people either following the rules or not getting caught.

  • software failures (Score:5, Insightful)

    by Anonymous Coward on Wednesday February 12, 2003 @01:54PM (#5288877)
    I'm not sure UCITA is the correct way to go about it, but I think we do need some way of assigning responsibility for software failures, and opening up authors and distributors of software for lawsuits when it does fail.

    Perhaps a professional association would help. Engineers designing bridges, chemical reactors, buildings and aircraft all have to sign the designs to say they have examined them and believe they will not fail. If they are proven incorrect they can have severe consequences, including monetary damages, loss of license to practise, and jail terms. Why do software "engineers" get off so easily?

    Rules should be placed on software use so that in "critical" systems only software that is signed off as safe can be used, and so that if software that is signed off by a professional software engineer is used, and it fails, then the signing party is personally responsible for the failure.
    • I'm not sure UCITA is the correct way to go about it, but I think we do need some way of assigning responsibility for software failures, and opening up authors and distributors of software for lawsuits when it does fail.
      And so ends free (as in beer) software. :(
      • It would not end free software, but for critical installations it would insure that someone who is qualified has insured that it will work with in the current guidelines.

        I would feel much safer know that my heart monitor is run using open source software than proprietary software. At least with open source I can have ANY independent person look over the program. With proprietary software everyone that looks over the code has to sign his or her soul over.
        • I'm just not convinced that it wouldn't instantly lead to a great big game of pass the buck - ultimately ending up at whoever wrote whatever snippit of code.

          But I'm cynical like that. :P
      • Why? Nobody would force you to sign your software as long as you don't work on it for hire. If RedHat wants to distribute my program, they, and not me, would have to provide warranty and accept responsibility.
    • by $$$$$exyGal (638164) on Wednesday February 12, 2003 @02:10PM (#5289033) Homepage Journal
      This sounds great, but in the end, some type of "malpractice" insurance would have to be introduced. The cost of that insurance would spiral higher and higher until some president had to address it in the State of the Union Address to the nation.

      I don't want to have to get "malpractice" insurance. In the end, that cost will be passed onto the customer, and if the customer doesn't want to pay the extra cost, we'll have to cut some more QA work (ironically)

      --sex [slashdot.org]

      • Lots of professions have malpractice insurance, without costs spiraling out of control. (The problem with medical malpractice has more to do with otherwise intelligent people getting out of jury duty leaving only the gullible ones to award millions without challenge)

        If the user does not want to pay for the insured software with signed off, then it could still be used. Just don't let my heart failure go unnoticed because of a general protection fault.
      • by endoboy (560088) on Wednesday February 12, 2003 @04:00PM (#5289949)
        It's called errors & ommissions coverage. For a small medical device company, the premium runs $3 to 5 thousand per year.

        As for your statement that the insurance cost will cause you to cut down on QA--I call BS. The only reason that software companies get away with producing the crap that passes for the average code package is that they have miraculously managed to disclaim almost all liability.

        A required warrantee of merchantability (as just about every other product on the planet has) is about the best thing that could possible happen to the software industry--it's about time the coders of the world took on the responsibility that comes with claiming to be an engineering discipline.
      • There is a "malpractice" insurance for software, it's call "errors and omissions". Our company had to get it just to rent space.
      • It's rather sad, but did you know Lawyers need malpractice insurance too. Apparently it's very common for poeple to sue their lawyers.

        Talk about a hell of your own making...

    • Software engineers don't get off easy, they just work under different constraints.

      An engineer designing a bridge, chemical reactor, or building, knows exactly where it will would go. I have never seen a bridge that can be placed over any river.
  • by Anonymous Coward
    Now somebody needs to go to a computer store, buy software, begin installation and regect the EULA in either Virginia or Maryland and file a similar suit as the one in Califorinia. Now that the ABA has withdrawn support, it is conceiveable that this type of suit may result in the overturning of the law.
  • Imagine ... (Score:5, Insightful)

    by molarmass192 (608071) on Wednesday February 12, 2003 @01:54PM (#5288881) Homepage Journal
    <satire>
    A body of lawyers not endorsing a law that would prohibit some lawsuits? Very strange indeed.
    <satire/>

    Seriously, would the passing UCITA result in more or less lawsuits? I'm assuming less since the room to challenge license clauses would be greatly reduced.
  • It would appear that a standard for licensing is something that Redmond or other similar entities would want. This also sounds like another attempt to make GPL/GNU software a less then desirable product through restrictions on purchase (i.e. Sorry, we cannot purchase open source software, we must purchase software that has a license approved by my State or Federal government).

  • Responsibility (Score:5, Insightful)

    by www.sorehands.com (142825) on Wednesday February 12, 2003 @01:55PM (#5288886) Homepage
    The UCITA is an attempt of software companies to get out of responsibility. It is one thing to not be responsible for every minor unknown bug, but it is completely different disclaim everything and enforce many of these all to common draconian terms in shrink wrap license agreements.
  • by Kaimelar (121741) on Wednesday February 12, 2003 @01:56PM (#5288898) Homepage
    Quoth the submitter:
    Cognito writes "AFFECT, Americans for Fair Electronic Commerce Transactions, is reporting that the American Bar Association has withdrawn its consideration for endorsing a resolution to approve UCITA, the Uniform Computer Information Transaction Act. This is a good thing.

    Thank goodness the submitter told us that. For a second there I thought I was going to have to read the article and form my own opinion! :-)

    • Thank goodness the submitter told us that. For a second there I thought I was going to have to read the article and form my own opinion! :-)

      Yeah, I was a little confused from the summary too, until I read that. Phew! Had me worried for a bit.

      The ABA withdrawing support for UCITA, the ALA fighting CIPA, and IEEE asking for clarification on the DMCA. We live in interesting times.
  • by Neophytus (642863) on Wednesday February 12, 2003 @01:57PM (#5288908)
    Some quotations about the law: [4cite.org]

    The software purchased would no longer belong to the buyer.

    UCITA allows consumers to become licensees who are bound to the terms of the contract provided in "shrink-wrap" products or "click-on" agreements.

    UCITA allows restrictions on use to be revealed after purchase.

    UCITA allows restrictions that prohibit users from criticizing or publicly commenting on software they purchased.

    UCITA puts consumers at the mercy of software publishers to "blackmail" users for more fees by their unhindered ability to disable or remove their product for unspecified "license violations."

    How the fuck that law was even thought up in the first place is beyond me, let alone taken seriously and implemented in two states (Maryland and Virginia). This is a severe intrusion into consumer rights and privacy and as far as I can see trys to restrict what, when and where you can do with software as much as possible.


    • The way I understand contract law and natrual law, is that contracts are a two way binding agreement that cannot be imposed on 3rd party's who are not part to the contract, they can also not impose on the moral nature of free will (eg contracts to follow a religion, or to be a slave, or to give up your free speech rights etc...).

      Click/shrink wraps don't meet any of those criteria - especially if you consider that the right to copy is a natural law right, like the free speech, the right to create, and freedom of expression. They were a fradulent form of contract, I'm glad we got rid of them.
      • cannot be imposed on 3rd party's who are not part to the contract, they can also not impose on the moral nature of free will (eg contracts to follow a religion, or to be a slave, or to give up your free speech rights etc...).



        So, how is it that nondisclosure "agreements" are able to impose on the moral nature of free will (aka, squelch free speech rights)?

        • IANAL, but I would assume because they have an end date/condition. It doesn't permanently restrict your right to speech (the gov can get around this for national security interests).

          Basically, an NDA is a trade off: you get info you wouldn't otherwise have known for the promise not to talk about it until a certain condition is met.

          jon
  • Link to lawsuit (Score:4, Informative)

    by creative_name (459764) <pauls AT ou DOT edu> on Wednesday February 12, 2003 @01:57PM (#5288910)
    Here is a link to the story about the lawsuit that could have been prevented.

    Lawsuit Link [com.com]
  • Lawsuits (Score:1, Funny)

    by faxafloi (228519)
    ...the American Bar Association has withdrawn its consideration for endorsing a resolution to approve UCITA...a recently filed law suit would have been prohibited if UCITA were endorsed and adopted...

    So the ABA is just protecting its litigation industry?
  • The lawsuit would have been unnecessary under the UCITA. It requires retailers to allow for returns if users don't like the terms.

    Not that any MD retailers pay any attention to the law...

    W
  • Execelent! (Score:2, Funny)

    by Jonny Ringo (444580)
    Words ... This is a good thing. ... more words.

    That's all I needed to know. Thanks for dumbing it down for me. I totally stopped reading once I saw that. I'm am content that a good thing has happened today. NIce.

  • by argoff (142580) on Wednesday February 12, 2003 @02:06PM (#5288992)
    There are those who genuinely believe that copyrights are some inherent property right and intend to use the internet to leverage controll of information to every corner of the planet. In this scope they have proposed UTICA, the DMCA, infinite extensions, and hardware controlls whenever possible. They just don't get that the entire value of the information age encompases the unadulterated free flow of information to everywhere and everyone.

    Unfortunatley, nowdays they are causing a massive economic problem as technology and paradigms pass them by. The software revenue giants Like Microsoft, are completely locked out of the greatest new paradigm in software - Linux and free software. The revenue giants like the movie and music industry are completely locked out by the greatest new paradigm in media - unhibited p2p. Maginify this across zillions of businesses and industries and long behold you have a massive economic problem that will not go away with the war on Iraq, but rather with the disapearance of copyrights. Getting rid of UTICA is a good first step, now all we need to do is get the weed at the root.
  • Cute Workarounds (Score:5, Interesting)

    by jyuter (48936) <<jyuter> <at> <yu.edu>> on Wednesday February 12, 2003 @02:10PM (#5289030) Homepage Journal
    I remember reading in ZDNet a long time ago (forgot who wrote the article) about two great workarounds for the click-wrap agreements.

    1. Videotape yourself getting hammered before clicking - thus not in the state of mind to agree to anything
    2. Videotape a minor clicking on the "ok" - also not bindidng

    Anyway, I thought it was cute back then
    • "I remember reading in ZDNet a long time ago (forgot who wrote the article) about two great workarounds for the click-wrap agreements.

      1. Videotape yourself getting hammered before clicking - thus not in the state of mind to agree to anything
      2. Videotape a minor clicking on the "ok" - also not bindidng"


      3.) Videotape yourself using a touch screen to hit the OK button. Afterall, it does say 'click', which technically means 'mouse'.
  • I thought I was against UCITA, but if the ABA (aka the trial lawyers' union) is not supporting it, perhaps I should be for it.

    Since (IN MY HUMBLE OPINION) the ABA seems to support things that generate more business for their constituency, as opposed to good laws, maybe UCITA isn't so bad after all. In any case, you have to wonder what the real reason they aren't pushing for it is.
    • freedom, by its very nature, will create areas of ambigutity about 'what is aloud'. That creates more business for lawyers, in general, that is OK. BTW, if anybody comes after you(in a legal sense) it will be a lawyer that saves your butt.
  • by BigGar' (411008) on Wednesday February 12, 2003 @02:19PM (#5289102) Homepage
    that a swedish musical group had come out against UTICA?
    • (this was about a swedish musical group)

      Well, I didn't at first, but then I realized that this was slashdot, so chances were near-certain that the "editors" had mispelled something, so the thought crossed my mind that Abba might be what they meant. But then I read closer, and saw that they really did mean the Bar Association.

      Of course, I haven't read the article yet, and given that the slashdot "editors" are about as good with content as they are with spelling, I refuse to dismiss the possibility that it really is the swedish musical group that's being discussed.... :)
  • Old news and from Sweden! What do I care whether ABBA...? oh, wait
  • Not the proposed law (Score:5, Interesting)

    by werdna (39029) on Wednesday February 12, 2003 @02:23PM (#5289130) Journal
    It's interesting to note that a recently filed law suit would have been prohibited if UCITA were endorsed and adopted as a common law.

    In what world?

    That lawsuit alleges that the plaintiff was forced to stomach a license she could not have been reviewed, with respect to which she was not permitted to return the goods after deciding she didn't like the license.

    Had California been a UCITA state, she could sue under UCITA for failure to accept the return, since UCITA expressly provides that a shrink-wrap for a mass-market product is not enforceable unless the person has an opportunity to review, or:


    (3) If a record or term is available for review only after a person becomes obligated to pay or begins its performance, the person has an opportunity to review only if it has a right to a return if it rejects the record.


    At least at first view, UCITA would have provided her an express cause of action, unlike the present and uncertain state of common law and UCC in which her lawsuit presently festers. She will not know the answer until the judge and jury had decided, and at least one or two levels of appeal had passed (assuming she doesn't give up first) -- Under UCITA, she would have a right to return or rescind given to her by statute.
  • by MickLinux (579158) on Wednesday February 12, 2003 @02:23PM (#5289135) Journal
    Okay, we have a Va-based LLC.

    We had problems with MS Word not working. [I don't mean not working as advertised; I mean not working. Standard corruption problems was taking out about 2/3 of our time.] So we decided we had to get away from MS Toys, and go to something real.

    We also had an old copy of Quark 3.3, legally licensed and all -- so I preferred that, but were considering Adobe Pagemaker as well.

    Anyhow, I called them, and asked them "Is Quark Xpress legal to be used in Lithuania", specifically because I didn't want to spend the money for Quark Passport, and their license was unclear. Understand that Virginia law enforces the verbal contract as well -- but that turns out to be neither here nor there.

    After calling their legal people, and talking to them, they said "by the license, it is unsupported but legal outside of the US and Canada", and essentially took me through the license to show that.

    Okay, fine and well. We adopted Quark, and went with three copies: one Passport, one Xpress, and one other passport... which turned out to be a fraudulent sale. About this time we had to go to Lithuania, so from Lithuania we called for a "valuation" to get Paypal's insurance to pay [they never did], and Quark came back and said "Wait a minute, we see that your company has one copy of Quark Xpress. That's now illegal; so to make it legal, you have to pay us another $550." I asked about contract creep, and they said that didn't matter, and they don't know who would have said anything anyhow.

    Well, part of this bill -- which PASSED in Virginia, makes it easy for software companies to modify the contract *after* you have the software, and charge an additional fee to keep using it. AND, if you don't pay up, they have the right to REMOTELY DISABLE YOUR SOFTWARE, REGARDLESS OF DAMAGES IT CAUSES, AND WITHOUT LIABILITY!!!

    Since we do have a Virginia LLC, I am going to start writing Air Traffic Controller Software.

    Anyhow, I claim "First Victim."

    P.S. In case you consider Quark to be evil after hearing this, don't forget what Adobe did to that Russian programmer who made ebooks for the blind... which is a lot worse. And your alternative to those two seems to be M$, which is not only evil--it just plain doesn't work. The other alternative is TEX, which is WYSIWYM instead of WYSIWYG, and is therefore not suitable for some usages as page layout software, at least. [It also seems to be limited to the number of fonts it can handle; at least, Scientific Word is. We really considered it, but discarded it because we could not fit our book into their predefined layouts.]

  • by mstockman (188945) on Wednesday February 12, 2003 @02:27PM (#5289156)

    For some good background, read Ed Foster's columns in InfoWorld. This guy has (thanfully) been waging a war in print against UCITA since it was first proposed. Here's his latest column on this very topic (ABA consideration of UCITA):

    Gripe Line Column from Jan 31 2003 [infoworld.com]
  • ... now if we can only get the Bee Gees on our side...
  • by grub (11606)

    I'm suprised ABBA would be interested in this to start with. They were a Swedish disco group, not a bunch of lawyers.
  • We're finally winning something!

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