ABSTRACT
The Uniform Computer Information Transactions Act (UCITA) is an attempt to conform state law relating to software and information licensing to a uniform national standard. UCITA began as a proposed revision to the Uniform Commercial Code (UCC). For more than 10 years the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) debated the merits of various proposals to cover the licensing of software and information, including the proposal UCC 2B, but were unable to agree on a solution. In May 1999, the ALI withdrew its support after concluding that the UCC 2B approach was flawed. Despite opposition from the ALI and dozens of educational, library, and consumer groups, NCCUSL ratified the model legislation in July of 1999, renamed it UCITA, and sent it to the states for enactment without either the endorsement of the ALI or a review by the American Bar Association. UCITA enjoys strong support among the high-technology community including large software companies like Microsoft and Internet companies like AOL. UCITA has also met with stiff opposition throughout its 10 years history. Critics have expressed concerns about its wide-reaching scope, its effect on existing copyright and consumer protection laws, and its questionable fit with the First Amendment. These and other issues, such as its favorable treatment of choice of law and forum clauses and the difficulty of meeting its standard of unconscionability, have resulted in its failure to gain acceptance in most states. Courts are still trying to resolve many of these issues today. The overall trend appears to be toward enforcement of shrink-wrap license agreements when the licensee has an opportunity to review the terms and accept or reject them. Thus, in spite of NCCUSL’s failure to gain wide acceptance of UCITA, decisions by the courts could ultimately have a similar impact on the way information transactions are viewed.
