UCITA (warning - it is long)

[Jim]

UCITA

There is a bill in the Arizona Legislature that will, if adopted into law,
seriously harm the citizens of Arizona.  HB2041 was introduced by:

State Senator Chris Cummiskey
Assistant Senate Floor Leader
State Senator, District 25 - Central Phoenix (Current)
ccummisk@azleg.state.az.us

State Senator Ramon Valadez
Legislative District 10 - Tucson
rvaladez@azleg.state.az.us

State Representative Jim Carruthers
Republican -- District 5 - Yuma, Parker, Quartzsite, Wellton, San Luis
jcarruth@azleg.state.az.us

State Representative Debra Brimhall
Republican -- District 4 - Winslow, Holbrook, Snowflake, St. Johns,
Taylor,
Springerville, Eagar, Showlow, Payson, Miami, Globe, Superior, Hayden,
Pima,
Florence, Casa Grande
dbrimhal@azleg.state.az.us

State Representative Mark Anderson
Republican -- District 29 - western Mesa
manderso@azleg.state.az.us

State Representative Dean Cooley
Republican -- District 21 - Mesa
dcooley@azleg.state.az.us

State Representative Jeff Hatch-Miller
Republican -- District 26 - Phoenix
jhatch@azleg.state.az.us

State Representative Wes Marsh
Republican -- District 28 - Phoenix
wmarsh@azleg.state.az.us

These and indeed all the members of the Arizona Legislature need to be
informed about the consequenses of this proposed legislation.  I propose
that we submit the following information to ALL Arizona legislators.

--------------

The purpose of this communication is to inform you about our concerns
regarding HB 2041 - UCITA.  This bill, while superficially appearing
beneficial, deserves your serious consideration.  There are many provisions
of this proposed legislation that will seriously harm your constituents,
the citizens of Arizona.  Please take the time to consider our objections.

UCITA (originally titled UCC 2B) was designed and promoted by the
proprietary software industry.   UCITA is a contract law statute that would
apply to computer software, multimedia products, computer data and
databases, online information, and other such products.  It was designed to
create a uniform commercial contract law for these products and calls
itself "a cyberspace commercial statute." It covers contracts that are
generally known as "shrink-wrap licenses".

Many individuals and organizations are opposing UCITA because it has the
potential to be very harmful to consumers, especially consumers of computer
products (which we all are today).  Among those opposed to UCITA are the
Consumers Union, the Association of Research Libraries, a large number of
state attorneys general, and an organization to which I belong, the Phoenix
Linux User Group.

We, as Americans, generally believe that big companies ought to be held to
a strict standard of liability to their customers because it will keep them
honest.  UCITA will do the opposite.  UCITA says that by default a software
developer or distributor is completely liable for flaws in a program.  But
it also allows a shrink-wrap license to override the default.
Sophisticated software companies that make proprietary software will use
shrink-wrap licenses to avoid liability entirely.

UCITA has another consequence.  It gives proprietary software developers
the power to prohibit reverse engineering. This would make it easy for them
to establish secret file formats and protocols, which there would be no
lawful way for anyone to figure out.  The current technological
sophistication that people enjoy today and the unprecidented access to
information that we all have via the Internet is built on a foundation of
open standards and open protocols.  These standards, and their supporting
protocols, were designed, developed, enhanced, and adopted by the computing
community at large in an open, visible way.  Were UCITA in effect while
these standards and protocols were being discussed, the Internet would be a
vastly different creature.  It would have been created and now be
controlled and manipulated by the proprietary software companies who would
have had the ability and the power to stipulate secret standards and
protocols and prohibit the computing community from discovering those
standards and protocols under penalty of law.

UCITA does not apply only to software. It applies to any sort of
computer-readable information. Even if you use only free software, you are
likely to read articles on your computer, access data bases, etc.  UCITA
will allow the publishers to impose the most outrageous restrictions on
you.  They could change the license retroactively at any time, and force
you to delete the material if you don't accept the change.  They could even
prohibit you from describing what you see as flaws in the material.

UCITA will also validate software licenses that excuse software vendors
from responsibility for "buggy" software.  It will even allow vendors to
prevent users and reviewers from publicly discussing a product.  Both the
ruling by the Supreme Court of the State of Washington and Microsoft's
demand to Slashdot.org to remove Internet postings about one of its
products are evidence of a disturbing erosion of customer protections in
state contract law.

The Supreme Court of the State of Washington ruled that "not our fault"
language contained in a shrink wrap license for software was valid, even if
the customer never read the disclaimer and the software company knew about
the defect before the product was sold.  In the Washington case, a
construction company made a $1.95 million error in a bid it submitted to
build a medical center because of a defect in the software.  The
construction firm discovered the error only after the bid had been
accepted.  The construction company sued the software developer and
distributor to recover the $1.95 million and the court ruled that a
liability waiver in the shrink-wrap license provided complete protection to
the software company.

UCITA would make the Washington Supreme Court's ruling law in every state
that adopts the legislation.  According to Skip Lockwood, director of 4CITE
(For a Competitive Information Technology Economy), "UCITA takes away
software firms' incentive to pre-test their software in order to distribute
bug-free programs.  Software companies can ship programs with known
defects, secure in the knowledge that UCITA will shield them from
liability."

In another case, Microsoft has demanded that Slashdot.org remove postings
on its web site about a Microsoft security product.  Microsoft contends
that when the users downloaded the product from the Microsoft site, they
clicked on a confidentiality agreement.  Therefore, users are unable to
publicly comment on the software.

UCITA would render this click-on confidentiality agreement (and many other
onerous provisions) completely enforceable.  "UCITA will allow software
vendors to bind thousands, if not millions, of people to secrecy.
Consumers and competitors will not be able to comment on or criticize the
vendor's products" according to Lockwood.

Opponents argue that UCITA gives software manufacturers and information
services an unfair advantage and leaves consumers with very little recourse
when they find themselves with bad software.  The opponents include

        26 State Attorneys General
        Association for Computing Machinery
        Free Software Foundation
        Consumers Union
        4CITE, a broad-based coalition of end-users and developers of
                computer and    information technology
        Society for Information Management
        IEEE
        Newspaper Association ofAmerica
        Motion Picture Association of America
        Association of Research Libraries
        and many others

Thank you for your time.
Jim

Bliss comes from within, ignorance from without