UCITA: Enforceability and Fairness of Negotiated, Shrinkwrap, and

Click-Through LicensesJames Neal

Dean of University Libraries

Johns Hopkins University

Rodney Petersen Don Riley

Director, Policy and Planning Associate Vice President & CIO

University of Maryland University of Maryland

EDUCAUSE2000 Nashville, TN

October 11, 2000

State of Maryland’s2000 Technology Goals

• Protect and expand Maryland businesses by establishing a bold framework for the digital economy, encouraging growth, and preventing fraud.

• Provide security for our families with strong consumer protections, privacy guarantees, and aggressive efforts to protect our children from the potential dangers of the Internet.

• Dramatically improve customer service by making Maryland a national leader in delivering government services over the Internet.

• Enable law enforcement to fight digital crime.

State of Maryland’s 2000 Technology Agenda

GOVERNOR'S INITIATIVES• eMaryland: Becoming the Number One E-Commerce State

in the Nation• Establishing a CEO Board of Advisors for E-Commerce• Expanding the Internet Technology Investment Fund to

Provide for Application Services Provider (ASP) Projects• Expanding Government Services On-Line• Restructuring the Information Technology Board• Guaranteeing the Right to Privacy for Citizens• Protecting Citizens from Computer Crimes

State of Maryland’s 2000 Technology Agenda

GENERAL ASSEMBLY'S INITIATIVES• Adopting Uniform Electronic Transactions Act (UETA) • Adopting the Uniform Computer Information Transactions

Act (UCITA)• Helping Start-Up Companies Grow and Thrive• Regulating Unsolicited Email• Prohibiting Unauthorized Access to Computers• Expanding Anti-Child Pornography Laws to the Internet• Enabling Law Enforcement to Seize Child Pornography

Materials

Maryland Information Technology BoardInternet Policy Recommendations

• Creating a More Efficient and Citizen-Focused Government through Internet Applications;

• Promoting Electronic Commerce in Maryland; • Facilitating Information Technology Research and the Development of

New Technologies;• Fairness and Neutrality in Tax Policy; • Bridging the Digital Divide; • Protecting Citizen Privacy; • Unsolicited Bulk E-Mail; • The Internet’s Emerging Role in Health Care; • Federal Health Insurance Portability and Accountability Act; and • Internet and Computer-based Crimes

IT Board Recommendation: “Enlightened Policies on Commercial Law”

Maryland should provide a legal framework that promotes and enhances the incorporation of e-commerce into everyday business operations. National model legislation has been developed to establish a level playing field for electronic commerce in every state.

Uniform Computer Information Transactions Act (UCITA)

A much more comprehensive model law, the Uniform Computer Information Transactions Act (UCITA) sets forth a legal environment for the use and licensing of software programs. UCITA is particularly timely as Maryland and the rest of the country move to an ASP environment where software is more likely to be "rented" and accessible over the Internet, rather than being purchased and loaded into an individual’s computer system. UCITA, however, is a lengthy and complex piece of legislation. The Maryland Attorney General has written a letter expressing concern about several aspects of UCITA. In light of these complexities, the ITB recommends that the Maryland legislature hold hearings on UCITA to determine its appropriateness to our State.

UCITA: History

Uniform Commercial Code Article 2B• UCC

– Sale of “goods and services”– Leases of “personal property”

• National Conference of Commissioners on Uniform State Laws (NCCUSL)

• American Law Institute (ALI)• UCITA – July 1999

Status of UCITA In The States

• Virginia – passed UCITA but delayed implementation until 2001 pending the outcome of a study by the Joint Committee on Technology and Science and the implementation of its recommendations

• Maryland – passed UCITA with amendments. Became effective on October 1st

• California – legislators have decided not to introduce legislation this year

• Delaware – tabled in the House for this year and will not move in the Senate

• District of Columbia – D.C. has introduced the measure and it awaits a public hearing

Status of UCITA in the States

• Hawaii – introduced but no action was taken• Iowa – legislation passed that protects Iowa businesses and

consumers from the effects of UCITA• Illinois – introduced but tabled indefinitely• Louisiana – a motion to study and “reverse engineer” UCITA

to comply with Louisiana state law has been introduced• Maine – UCITA tabled until 2001• Oklahoma – UCITA has passed the Senate and House but was

not conferenced. The legislation will undergo an interim study before further consideration

Core Library Concerns

• Copyright/Fair Use

• Self-Help

• Mixed Transactions

• Mass Market Definition

• Warranties/Known Defects

Core Library Concerns (cont’d)

• Choice of Law/Forum

• Reverse Engineering

• Privacy/Free Speech

• Cost of Doing Business

• Digital Divide

Intellectual Property Developments

• International Treaties

• National Legislation

• Licensing Arrangements

• Use Guidelines

• Technological Controls

• Author Assertion of Ownership Rights

Recent Copyright Legislation in U.S.

• Copyright Term Extension

• Digital Millennium Copyright Act

• Collections of Information Antipiracy Act

• Consumer and Investor Access to Information Act

• Uniform Computer Information Transactions Act

Copyright Issues in the Digital Environment

• Digital and Network Distribution and Copying

• International Harmonization

• Fair Use and Access Prohibitions

• Online Service Provider Liability

• Copyright Management Systems and Anticircumvention

Copyright Issues in the Digital Environment (cont’d)

• Term Limitation and Commercial Exploitation

• Learning and Internet

• Maintenance of Public Domain

• New Licensing Regime for Facts

• Importance of Contract Negotiations

Library and Education Community Amendment to UCITA

“When the licensee in a non-negotiated license under the Act is a library, archive, or educational institution, a term which hasthe effect of restricting the provisions of 17U.S.C. Sections 102(b), 107, 108, 109, 110,112, 121, 512 and 120(a)(1)(C) and (d)-(k) shall not become part of the license.”

Adopted Amendment on Copyrightin Maryland UCITA Law

“A contract term is unenforceable to the extent it would vary a statute, rule, regulation, or procedure that may not be varied by agreement under the federal copyright law.”

The Goals of the Education Community

Develop policies for intellectual property management that:– enable broad and easy distribution and reuse

of materials by scholars and students

– foster a competitive and supportive marketfor scholarly communication and creative work

State Level Considerationsfor UCITA Legislation

• Copyright is Unfamiliar

• Librarians and E-Commerce

• Economic Development Imperative

• Maryland as Prototype

• Flood of Lobbyists

State Level Considerationsfor UCITA Legislation (cont’d)

• Nature of Compromise Process

• Industry Exclusions

• Importance of Librarian Lobbying

• Confidence in Federal Preemption

• Influence of Leadership

• States Rights/Immunity

State Level Considerationsfor UCITA Legislation (cont’d)

• Attorneys in the Legislature

• Bias Toward Proponents

• Knowledge of Legislation

• Libraries as Pirates

• Libraries Trying to Get What They Could Not at Federal Level

State Level Considerationsfor UCITA Legislation (cont’d)

• Amendments Process/Work Groups

• Quieting of Public Agencies

• Concerns About Uniformity

• Digital Divide

• UCITA for Electronic Information

Broad Campus Involvement

• Library

• University Counsel

• Information Technology

• Government Relations

• R & D/Technology Transfer

• Purchasing

• Academic Leadership

Role of Librarians

• Knowledgeable Resources for the Community

• Political and Legislative Advocates for Community Interests

• Education in Community on Respect for Copyright

Role of Librarians (cont’d)

• Documenters of Impact of Changes in Copyright Laws

• Aggressive Negotiators of License Agreements

• Active Supporters of New Strategies for Ownership of Intellectual Property

For more information, see:

• UCITA – Summary and Implications for Libraries and Higher Educationhttp://www.arl.org/info/frn/copy/ucitasum.html

• Association of Research Libraries (ARL) Teleconference on UCITAhttp://www.arl.org/ucita.html

• UCITA in Marylandhttp://www.oit.umd.edu/pp/policy/ucita