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OP-Ed on UCITA, July 1999

Cem Kaner and David Pels

We grant permission to the press to print this article without payment to us. If you use it, please let us know at ucita@kaner.com.

As you read this, a little known but influential legislative drafting organization is finishing its work on a 350-page proposal called the Uniform Computer Information Transactions Act (UCITA). Backed primarily by computer software and hardware companies, UCITA will slash customers' rights.

The organization is the National Conference of Commissioners on Uniform State Laws (NCCUSL). NCCUSL was formed by the States shortly after the Civil War, to write laws that all (or most) of the States could agree to. If NCCUSL approves UCITA at the end of this month, UCITA will probably become law in a few states by the end of 1999.

Here are examples of the rules under UCITA:

• Suppose you buy a computer game.When you've finished playing it, suppose that you want to take it off of your computer and give it to your sister. Under the law today, this is just like buying a book or a record--you can't make a copy to keep for yourself, but you can give away the one that you bought or you can lend it to a friend or sell it used. Under UCITA, the publisher can say you can't sell the software used, lend it or give it away. Book publishers tried to restrict post-sale reselling of books a century ago. A feisty little retailer called Macy's took them on, and the United States Supreme Court invalidated these restrictions. UCITA's grant of new intellectual property rights to mass-market sellers is one of many reasons that the main American library associations oppose UCITA.
• Suppose your new computer game doesn't work. You call for help. The software company charges $3 per minute to talk to you. After half an hour ($90), you realize the company won't help you. You ask for a refund and return the product. Under UCITA, the company can send you the $40 you paid for the game but keep the $90 you spent on the phone call. You'd have been better off throwing the game away. This is one of many ways in which UCITA lets software companies avoid responsibility for their defects, even for defects they know about when they sell the product. Even for defects that they know about and choose not to tell the customer about. Many software developers believe that this rule threatens the professionalism of their work. It is one of the reasons that the main developers' professional societies (including the Association for Computing Machinery and the Institute for Electrical and Electronic Engineers) oppose UCITA or have expressed serious concerns about it. Similar opposition comes from quality control professionals.
• Suppose that a software company demonstrates a product at a trade show. You order the product at the show. The product you receive has different screens, is harder to use and less capable. Today, when a software company demonstrates a product, it creates a warranty that the product you get will be the same, work the same, and have the same capabilities as the one demonstrated. UCITA eliminates this warranty for the display layout and commands) and cuts it back for functionality.

Backers of UCITA insist that it leaves consumers and small businesses with our existing rights, and gives us new ones. But it doesn't. That's why every consumer advocate we know (including Consumers Union and Ralph Nader's Consumer Project on Technology) has called for termination of the UCITA project. A July 9, 1999 analysis by the Federal Trade Commission points out that UCITA allows software companies to place "restrictions on a consumer’s right to sue for a product defect, to use the product, or even to publicly discuss or criticize the product." The analysis concludes, "we question whether it is appropriate to depart from these consumer protection and competition policy principles in a state commercial law statute."

NCCUSL is a well-respected legislative drafting organization. Having worked in the software industry (usually as managers) for most of our adult lives, we appreciate NCCUSL's enthusiasm for protecting America's fastest growing industry. But NCCUSL's drafting committee has let itself be too heavily influenced by software companies' lawyers, who dominate the committee's open-to-the-public meetings.

Until recently UCITA was a proposed amendment to the Uniform Commercial Code (UCC) called Article 2B. The American Law Institute co-authors all amendments to the UCC with NCCUSL. The ALI called for "fundamental revisions" in Article 2B because of its treatment of customer rights. Recently, the ALI withdrew from the Article 2B process, killing it as a UCC amendment. NCCUSL renamed 2B UCITA and is now carrying UCITA on its own.

NCCUSL is having its annual meeting in Denver will vote on UCITA on July 30, 1999. Without more opposition, UCITA will pass. We urge you to record your opposition by writing to the NCCUSL commissioners from your State. You can find the names of your commissioners at our web site, www.badsoftware.com.

Cem Kaner is a Silicon Valley-based attorney and software development consultant. He wrote Testing Computer Software, which is the best selling book in the field's history. David Pels heads customer operations and support for the high-technology division of a leading automotive diagnostics company. Kaner & Pels are the authors of Bad Software: What To Do When Software Fails (John Wiley & Sons, 1998). They can be reached at ucita@badsoftware.com.

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The articles at this web site are not legal advice. They do not establish a lawyer/client relationship between me and you. I took care to ensure that they were well researched at the time that I wrote them, but the law changes quickly. By the time you read this material, it may be out of date. Also, the laws of the different States are not the same. These discussions might not apply to your circumstances. Please do not take legal action on the basis of what you read here, without consulting your own attorney.

Questions or problems regarding this web site should be directed to Cem Kaner, kaner@kaner.com.

Last modified: July 25, 1999. Copyright © 1999, Cem Kaner. All rights reserved.