lj17

Rosenlaw & Einschlag

Technology Law Offices

Lawrence Rosen ● 3001 King Ranch Road, Ukiah, CA 95482 ● 707-485-1242

Michael B. Einschlag ● 25680 Fernhill Drive, Los Altos Hills, CA 94024 ● 650-949-2267

Why We Oppose UCITA

An attorney for Red Hat recently asked me to join her in requesting the National Commissioners on Uniform State Laws (NCCUSL) to reverse their 1999 decision to adopt UCITA.

I’ve commented on UCITA before. Readers of this column will recall that UCITA, the Uniform Computer Information Transactions Act, is a model code intended to be adopted by all states so that there is uniformity to the law of software licensing. UCITA provides default rules that apply when a software license omits essential terms. Another purpose of UCITA is to define what license terms are against public policy and thus cannot be enforced even if they are included in a license.

On behalf of Open Source Initiative and the open source community, I wrote to the NCCUSL commissioners to oppose UCITA.

UCITA does not yet address many of the major concerns of licensors and licensees of open source software. Even though recent amendments to UCITA have begun to recognize our unique issues, the proposed law remains flawed, incomplete, confusing, and biased toward licensors of proprietary software.

The drafters of UCITA proposed several amendments to address our issues. They still struck out with us. Here’s what they proposed and why we continue to oppose it.

One recent amendment provides that "a copyright notice merely giving permission to use the software that is not part of a contract is not within UCITA." This either is a truism (since federal copyright law preempts state contract law anyway!) or is inapplicable to the many open source licenses that are intended to be contracts. I understand that this amendment purports to address the concerns of people using the GNU General Public License (GPL), a license whose author urges that it be treated exclusively as a copyright license. What about all the other licenses that satisfy the Open Source Definition (www.opensource.org/docs/definition.php) whose authors intend to form a contract? This provision is of no help; it simply does not matter.

Another amendment excuses licensors from implied warranty obligations "if the software is free (no intent for profit or commercial gain from the transfer of the copy or from controlling use or distribution of the copy." This amendment relies on a *commercial* definition of software freedom rather than the far more important conveyance of rights to use, copy, modify and distribute software along with access to the source code that makes those rights meaningful.

The latter concept of freedom underlies the principles of the Free Software Foundation (www.fsf.org) and the Open Source Initiative (www.opensource.org), but it apparently plays no role in UCITA. The actual language in the UCITA provision is vague and confusing, relying as it does on phrases like "intends to make a profit" and "acts generally for commercial gain." It will allow proprietary software vendors who hide their source code and limit the rights to copy, modify, and distribute software to obtain the benefit of warranty exemptions, even though by doing so they actively obstruct their customers' ability to make the software "merchantable" and "fit for a particular purpose."

A third amendment provides that reverse engineering for the purpose of interworking cannot be prohibited by a license. This is an important step -- albeit a baby step -- toward affirming fair use rights that were so badly damaged by the passage of the Digital Millenium Copyright Act. Unfortunately, because of federal preemption this provision is probably of limited effect. Furthermore, it is not the same as a strong statement by NCCUSL that a license provision that restricts or limits *any* fair use rights to software is unconscionable and against public policy. While such a broad provision would not solve the preemption problem, it would make a valuable strong statement that may encourage Congress to restore the public benefit objectives that underlie copyright and patent in the U.S. Constitution. I am afraid that the current weak and limited UCITA amendment relating to reverse engineering will lull people into thinking that their former rights have been restored.

I believe that it will be important to start afresh with UCITA, to consider the new environment in which open source software competes against proprietary, closed software marketed by wealthy companies. UCITA is not particularly helpful to guide courts in interpreting or enforcing open source licenses, or to guide the Congress to restore fair use rights to the public. Without that, the open source community doesn't need UCITA.