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Problems Presented by the New State Uniform Computer Information Transaction Act (UCITA) Respecting the Use of Electronic Resources Vicki L. Gregory Professor and Director School of Library & Information Science University of South Florida

Overview What is UCITA? How does UCITA Mesh with Federal Copyright Law? Implications for Libraries and Information Centers. How is UCITA Faring in State Legislatures? What Should a Library Do If UCITA is Passed in Your State?

What is UCITA? Proposed Uniform State Law Software and database licensing issues Formats potentially affected: Computer software, documentation, databases,    websites, e-books and e-serials, movies and sound  recordings Types of licenses affected: Signed licenses Shrink-wrap licenses “Click-through” licenses

SCOPE of UCITA Applies to computer information-only transactions. Applies to mixed transactions that include both computer information and other matters (such as services). Applies to an entire transaction only if computer information is the primary subject matter.

How Does UCITA Mesh with Federal Copyright Law? UCITA is state-based rather than federal. Because UCITA must be passed by each state legislature to be effective, UCITA provisions may vary from state to state. It is possible to sign a contract that takes away rights granted under Federal copyright law except in a few instances (music residuals and a few similar situations).

Copyright Protection versus Licensing Licensing may restrict rights of libraries normally protected by copyright laws First Sale Doctrine Licensing Differences: Ownership of a copy versus “use” rights

Copyright versus Licensing Copyright represents a set of general regulations negotiated and developed through Congressional statutory enactment.  The same laws and guidelines apply to everyone in the country. Licenses, or contracts, represent a market-driven approach to such regulation.  Each license is arranged on a resource by resource basis.

UCITA: Implications for Libraries Concerns that UCITA will replace the public law of copyright with the private law of contracts. Concerns that UCITA will undercut traditional fair use of products. Concerns that UCITA will undermine libraries in the preservation and lending of information products.

UCITA: General Concerns that May Affect Libraries UCITA binds companies to license terms in software acquired by employees (or library users?) without prior authorization. UCITA allows software vendors to prohibit contractually public criticism of their product. UCITA allows software vendors to shut down software remotely without court approval and without incurring liability for the foreseeable harm caused.

Concerns (Continued) Elimination of “first sale” UCITA allows software vendors to prohibit even the transfer of software from one company to another (or from one user to another). UCITA binds purchasers to terms disclosed only after payment is made.

How is UCITA Faring in the States? Virginia -- signed into law March 14, 2000, becomes effective July 1, 2001 Maryland -- signed into law April 25, 2000, became effective October 1, 2000. UCITA legislation is currently hot in: Arizona Florida Georgia Illinois Maine Texas

Responding to Attempts in Your State to Pass UCITA Provide Information to Legislators Ascertain which Version of UCITA is Being Considered Align with other Interest Groups, such as Insurance Companies, Publishers etc. Consider compromises, such as removal of anti-criticism provisions, time bomb provisions, etc.

What Should You Do if UCITA is Passed in Your State? Educate your staff and users as to differences UCITA may make in how they use online products. Make and maintain an up-to-date file of all computer licenses. Keep copies of all licenses, even “shrink-wrap” licenses. Print copies of all online, “click-through” licenses, and then file for future reference.