December 01, 2000, 2:03 PM — You purchase a software program, at a store or on the Internet, and begin to
install it. Almost immediately you are confronted with a dialog box saying you have to
agree to a long, dense legal document in order to proceed. Having better things to do
with your life, you don't bother reading it and instead just click "OK" to continue the
installation. After you're done, you discover the product doesn't work for whatever
reason. Too bad, the software publisher tells you, by clicking "OK" you signed away any
rights you might have to return the product.
In essence, this is what UCITA is all about. From the early days of personal
computers, many packaged software products have come with "shrinkwrap" licenses -- a
of terms written by the software publisher that usually disclaim all responsibility for
delivering a functioning product other than perhaps warranting the delivery media be
defect free for 30 days. As the purchaser is only able to read the license after the
product is purchased and the package opened (hence the name shrinkwrap), the customer
has theoretically given up all rights to demand a return or repair by the time he or
she actually begins using the product.
In practice, however, it's not been that simple. Courts have historically frowned
on such "contracts of adhesion" -- non-negotiable terms presented post sale. Instead,
they have often chosen to disregard shrinkwrap licenses totally or in part and apply
other legal principles from common law, copyright law or laws regarding the sale of
goods to disputes involving software products. As a result, there is a great deal of
uncertainty about just what laws do apply to software transactions. And with the
emergence of e-commerce, open source software and business-to-business Internet
transactions, the need for more certainty in the laws governing a variety of
software-based transactions has become even more critical.
What is now called UCITA was originally conceived for the entirely laudable purpose
of clarifying the rules in this murky area of the law. UCITA is not federal law -- it
is a proposed uniform law for each state to consider enacting. While the name has
changed more than once (for many years it was known as Article 2B and was intended to
become part of the Uniform Commercial Code), the project of drafting the law has been
in the works for a decade under the auspices of the National Conference of
Commissioners of Uniform State Laws (NCCUSL), a body of 300-plus commissioners
appointed by their respective states.