The Nuts And Bolts
     The law establishes the intellectual property rights of companies that write software, which is generally licensed rather than sold. NCCUSL's David McCabe says the legislation makes licensing contracts valid and enforceable, with software creators needing protection of their digital products that are easily copied many times over.
     "The question is 'should we give folks who essentially expend capital in terms of money and sweat equity in creating digital products some kind of way to control that copying and protect their interests?'" he said.
     Most digital licensing agreements appear in pop-up boxes on computer monitors as users install their software. Although UCITA does allow users to return software to the vendor if they don't want to click that "I Accept" button to complete the agreement, some have raised concerns that those terms aren't available for review when the item is purchased. "We think that's something troubling," said Joseph Curran, attorney general for Maryland, where the legislation also has been introduced. "Our job is to point out that, normally speaking, the sale of goods and services in Maryland law and in other states requires material disclosure of all details before the sale so a buyer knows what he or she is buying." Curran joined 25 state attorneys general who signed a letter voicing concerns about UCITA.
     Consumer groups are also raising questions about a provision concerning self-help remedy, which McCabe describes as the software manufacturer's ability to disable software from afar if the user has not complied with the licensing agreement. The language in UCITA is a compromise between those who think software companies should have total control over such remedies and those who don't believe it should exist at all, according to McCabe. Proponents argue that UCITA provides more protection in this area than current law. "Right now, presumably, a vendor can shut off your software if you don't pay," said the Business Software Alliance's Becca Gould. "With UCITA, they're required to give notice and have a cooling-off period. That was a give on our part."
     But it's still raising eyebrows. Virginia Delegate Joe May, R, said that the legislature would continue to hold hearings about the legislation even though it has passed both chambers. He intends to further examine the self-help remedy as it relates to a software firm's ability "to hold you hostage," and plans to introduce related legislation. "Suppose you have a PC, and I just licensed a software package to you," he explained. "I could call you and say 'I know you only paid $100, but I think it's worth $200, so until you pay that, I'm going to keep your computer shut down.' Oddly enough, that's not against the law right now."

The Battle Rages On
     The drafting of UCITA has been marred with numerous controversies, and the fight didn't stop in July 1999 when NCCUSL voted on the legislation. Six states voted against the legislation, with 43 in favor. Librarians and industries such as entertainment and insurance have joined the anti-UCITA movement although a handful of states have introduced the bill. The high-tech industry has been abuzz since Maryland and Virginia are considering the legislation this year, pushing lawmakers to pass it to promote their state's participation in the New Economy. Maryland's Curran, who opposes the law, acknowledges the power of the high-tech industry.
     "I will concede there's a lot of advantage to having laws that make it attractive for tech companies to be in Maryland, and I don't want to do anything to stop that," he said.
     But University of Baltimore law professor Charles Shafer says there's nothing in the language that will bring companies to the state. He said that even if a business is in a state that has not passed UCITA, it could develop contracts that use the laws of Maryland.
     Business groups say that passing the law will show, however, that the state is aware of high-tech's needs. BSA's Gould praised Virginia for its passage of UCITA, noting that its prominence in the high-tech arena may lead to the bill's consideration by other states. "Virginia has been a leading tech state, and it's key that they enact it and the governor sign it this year. Lots of folks look to places where technology is home for the way to go. They've consistently listened to everyone's concerns."
     And although Virginia and Maryland have spent hours going through the legislation, some analysts wonder if other legislators will be willing to wade through the technical contractual language that weighs down the bill.
     "It's designed to be confusing, and a statute that covers something like this does not have to be as complicated, like a bowl of spaghetti, as this is," Shafer said. "And I wonder if that's not by design. If you can't understand it, you think it's too complicated for you and it's just like when you go to buy a computer or call a help desk and they make you feel like everything's your fault and you're just too little to understand it. So it's a way of keeping people from participating."
- by Stephanie Lash