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                       [IEEE-USA Position Statement]
                                      
                          Opposing Adoption of the
                        Uniform Computer Information
                          Transactions Act (UCITA)
                               By the States
                                      
                              Approved By the
                  IEEE-USA Board of Directors (Feb. 2000)
                                      
   On behalf of The Institute of Electrical and Electronics Engineers -
   United States of America (IEEE-USA) and its nearly 240,000 U.S.
   members who are electrical, electronics, computer and software
   engineers, we wish to reiterate to the state legislatures the concerns
   regarding the Uniform Computer Information Transactions Act (UCITA)
   that we previously expressed to the National Council of Commissioners
   on State Laws (NCCUSL).
   
   We believe UCITA should be rejected by the states. UCITA would have a
   widespread, complex impact including: (a) its interaction with the
   existing statutes, principles, and interpretations of Federal
   intellectual property law; (b) the provisions currently found in
   "shrink wrap" and "click-through" software agreements -- many of them
   questionable or unenforceable under current law -- that UCITA seeks to
   make enforceable; and (c) UCITA's effect on existing business
   practices and reasonable purchaser expectations. Into the existing and
   evolving legal and business situation, UCITA would inject an ironclad
   statutory framework that is very easy to abuse to the serious
   detriment of consumers, large business users, and small business users
   of computer software, software developers, computer consultants and
   the general public.
   
   Many organizations, including 24 state Attorneys General, the staffs
   of the Bureau of Competition, Bureau of Consumer Protection, and
   Policy Planning Office of the Federal Trade Commission, professional
   and trade associations, consumer groups, the American Law Institute
   (originally NCCUSL's partner in drafting UCITA), and others have
   expressed opposition or concern regarding UCITA. In some cases the
   concerns of these organizations parallel ours, and in other cases they
   raise additional issues. Our concerns are in the following areas:
    1. By changing what would otherwise be considered a sale into a
       licensing transaction, UCITA permits software publishers to
       enforce contract provisions that may be onerous, burdensome or
       unreasonable, and places on the purchaser the burden and cost of
       proving that these provisions are unconscionable or "against
       fundamental public policy." Examples of these provisions include
       prohibitions against public criticism of the software and
       limitations on purchasers' rights to sell or dispose of software.
       The first provision prohibits the reviews, comparisons, and
       benchmark testing that are critical for an informed, competitive
       marketplace. The second issue could legally complicate
       transactions including corporate mergers/acquisitions, sales of
       small businesses, the operation of businesses dealing in
       second-hand software, and even yard sales.
    2. UCITA would undermine the protections provided by Federal
       intellectual property law and upset the carefully achieved balance
       between owners and purchasers of intellectual property. For
       example, one major protection is that "fair use" case law and
       statutory copyright law permit "reverse engineering" for certain
       important purposes, such as development of compatible
       (interoperable) software products and information security
       testing.  Reverse engineering is the examination of software to
       identify and analyze its internal elements. Current shrink-wrap
       agreements often contain strict provisions forbidding reverse
       engineering. By making these provisions enforceable, UCITA would
       stifle innovation and competition in the software industry, and
       would straightjacket efforts of users to provide information
       security protection for their systems.
    3. UCITA allows software publishers to disclaim warranties and
       consequential damages even for software defects known to the
       publisher prior to sale, undisclosed to the buyer, and having
       damages that can be reasonably foreseen. For example, under UCITA
       a software publisher could not only prohibit publication of
       information on security vulnerabilities that users identify but
       could avoid responsibility for fixing these vulnerabilities.
    4. By legalizing the choices of law and forum often included in
       software agreements, especially shrink-wrap and click-through,
       UCITA would allow software publishers to make expensive and
       burdensome any efforts by purchasers to protect their rights. This
       includes issues that for a sale would be handled in local
       small-claims courts.
    5. The "self-help" provisions of UCITA would allow software
       publishers to embed security vulnerabilities and other functions
       in their software that facilitate "denial-of-service" attacks
       (remote disablement or destruction of the software) while avoiding
       liability for accidental triggering of the attacks or exploitation
       of these functions by malicious intruders.
       
   We urge the state legislatures to reject UCITA.
   
   This statement was developed by the Committee on Communications and
   Information Policy and the Intellectual Property Committee of The
   Institute of Electrical and Electronics Engineers - United States of
   America (IEEE-USA), and represents the considered judgment of a group
   of U.S. IEEE members with expertise in the subject field. The IEEE-USA
   promotes the careers and public-policy interests of the nearly 240,000
   electrical, electronics, computer and software engineers who are U.S.
   members of the IEEE.
     _________________________________________________________________
   
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                               [4]IEEE-USA |
     _________________________________________________________________
   
                         Last Updated: 18 Feb. 2000
           Staff Contact: Deborah Rudolph, [5]d.rudolph at ieee.org
                                      
                                      
    [6]Copyright © 2000 The Institute of Electrical and Electronics
    Engineers, Inc.
    Permission to copy granted for non-commercial uses with appropriate
    attribution.

References

   1. http://www.ieeeusa.org/forum/POSITIONS/ucita.html#top
   2. http://www.ieeeusa.org/forum/POSITIONS/index.html
   3. http://www.ieeeusa.org/forum/index.html
   4. http://www.ieeeusa.org/default.asp
   5. mailto:d.rudolph at ieee.org
   6. http://www.ieee.org/about/documentation/copyright
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