The ongoing dilemma

FORGIVE ME if you get the feeling this is a column I’ve written before. When you’ve been talking about UCITA (Uniform Computer Information Transaction Act) for more than five years, it’s hard to avoid a sense of déjà vu.

When we last discussed UCITA, it was just prior to a meeting of the standby drafting committee being held in Washington. (UCITA makes shrinkwrap and clickwrap licenses completely enforceable. For more background on UCITA’s history and provisions, see www.infoworld.com/ucita .) The results of that meeting are still a bit uncertain, but it’s time we talked about it.

While UCITA was stalling in state legislatures last year, it also began coming under heavy criticism from some in the American Bar Association who pointed out that the ABA is supposed to review model state laws before they are submitted to state legislatures. The ABA had never done so in the case of UCITA, and for a while this last summer it looked as if the ABA might actually adopt a resolution opposing UCITA in its current form at its annual meeting in August.

Observers were pretty certain that such a formal rejection by the prestigious ABA would be the final nail in UCITA’s coffin, but the ABA was not yet ready to go quite that far. Instead of voting on the resolution opposing UCITA, the delegates at the annual meeting appointed a task force to study UCITA more closely and report back to the organization. Although the nine-member ABA working group contains veterans of the UCITA wars from both camps, most of its membership would be taking a close look at the model law for the first time.

Faced with the need to appease the ABA, the organization that drafted UCITA, NCCUSL (National Conference of Commissioners on Uniform State Laws), announced that the standby drafting committee would hold a three-day meeting in November in Washington. Not only was the ABA working group invited to attend, the meeting would be open to all comers to comment and to propose amendments to the model law. In some ways, this represented the first real opportunity NCCUSL has provided UCITA opponents to suggest changes to the law since it replaced the proposed Article IIB of the Uniform Commercial Code in 1999.

For UCITA opponents, the November meeting presented an all-too-familiar conundrum. Most feel as I do: The problems with UCITA run so deep that it’s just not possible to fix. If we want to devise a truly balanced law to govern software transactions, we’d be much better off starting over. And those who have dealt with the drafting committee before have had little reason to think that their suggestions would be taken seriously.

On the other hand, UCITA opponents were concerned that, if they did not made a good faith effort to demonstrate the kind of changes they think the law requires, the ABA working group would find it difficult to understand their objections. And considering that UCITA is the law in Virginia and Maryland, winning even a few compromises in the right direction might be better than nothing. Ultimately, a number of individuals in an anti-UCITA coalition (see www.affect.ucita.com ) and some outside of it chose to participate, producing a long list of proposed amendments for the standby committee to consider.

Opponents received additional ammunition just prior to the meeting when a group of 32 state attorneys general issued a very strong letter opposing UCITA and declining to submit any proposals for the committee’s consideration. “UCITA is so flawed that any amendments which could reasonably be expected to result from this process would not significantly ameliorate UCITA’s negative impact on consumers, or on the marketplace in general,” the attorneys general said by way of conclusion. (By the way, there is no countergroup of attorneys general giving UCITA a ringing endorsement.)

Contemplate this for a moment. NCCUSL wants UCITA to be the law in all 50 states, yet the top law enforcement official in the majority of states opposes it vehemently and says it can’t be fixed. What’s wrong with this picture?

Readers of my UCITA columns are probably experiencing those déjà vu symptoms about now. Yes, a somewhat smaller group of attorneys general opposed UCITA in 1999, and another prestigious legal organization, the American Law Institute, had too many serious questions about Article 2B to go ahead with it. NCCUSL adopted it anyway. Would things go any better at November’s meeting than they did back then?

Even now, it’s hard to say just how the November meeting turned out. After three days of debate, the committee took no votes on any of the amendments that had been so laboriously prepared. The committee would vote by telephone at a later date, participants were told.

The week before Christmas, I heard a rumor that the committee had taken its vote but not on the amendments as they had been presented in the November meeting. Opponents who had presented amendments were in the dark about what the committee voted on. When I called NCCUSL headquarters, a representative confirmed that the committee had adopted a list of amendments and promised to send me the approved text. Two days later, I received the text, and NCCUSL made it available on its Web site.

It remains to be seen what the ABA working group made of all this or what they think of NCCUSL’s changes. I’ll have to talk about what I think of the amendments at a later date, but I’ll give you a hint: I get the feeling that I’ve been here before.