The Gripe Line: Keep It to Yourself

SAN MATEO (01/24/2000) - We've devoted a lot of space here to how Uniform Computer Information Transactions Act (UCITA) will hurt electronic commerce and software customers in general, and endanger IT organizations specifically.

There's another peril UCITA presents that we've only hinted at, however, and it may be the worst of all. UCITA could provide building blocks for a form of private censorship in this country that would dwarf our worst nightmares about government control of the media.

I've mentioned that UCITA is not only opposed by every consumer organization that's ever looked at it, but also by a vast array of free speech groups and library associations. Why is that? It's because they recognize that UCITA will allow large commercial entities to build barriers to the free flow of information on the Internet, barriers that may be breached only by those who have the time and legal resources to force an opening. That's because under UCITA, "computer information" -- and what isn't going to be computer information in the not too distant future -- is a commodity that certain players own and others license temporarily.

"We believe that ... UCITA presents an overly simplistic view of the marketplace for information," a coalition of five different library associations wrote to the state commissioners prior to their approval of UCITA last July. "For example, with UCITA, one is either a licensee of information (a consumer) or a licensor (an information merchant). This model fails to incorporate important features of the market for ... the ongoing roles of players in that market who are neither consumers or merchants. Libraries do not fit into the binary system of UCITA, nor do educational institutions nor many commercial entities. A primary goal of many libraries is to provide information to people of all ages and backgrounds, in part to raise the education level of and provide important resources to the broader community. ... The approach and terms of UCITA challenge the very core of these fundamental activities of libraries."

The concerns of librarians and others stem from the fact that there has always been the need for a delicate balance between the rights of content owners and users, a balance that has evolved through the years via such copyright law principles as fair use. UCITA provides content owners with an end-around such principles by making the common usage restrictions embedded in shrinkwrap contracts enforceable. Prohibitions against transferring your copy to a third party, reverse engineering even for compatibility purposes, or disclosing the poor performance you experience with a product could all be used by software publishers to get out from under the normal bounds of copyright law.

UCITA proponents have, of course, dismissed such fears, arguing that there are plenty of safeguards within UCITA and elsewhere to ensure basic copyright principles continue to be upheld. Those who say this, however, tend to be commercial contract lawyers whose expertise is not copyright law. At the same time, an impressive list of intellectual property lawyers has objected to UCITA because it undermines copyright law.

It would be of little use for those of us who aren't lawyers to try to follow the various arguments much farther, but one specific example hits close to home for me personally. The free speech concern most ridiculed by UCITA's proponents is the idea that non-disclosure terms in shrinkwrap licenses could be used to stop customers from publicly criticizing products, or stop publication of critical reviews. It's ludicrous to believe, they say, that any software vendor would try to enforce such a term.

Yet the fact is, it's happened. Oracle Corp. and several of its competitors have long had terms in their standard contracts that forbid the customer from disclosing results of any benchmarks it runs or publishing reviews of the product without the company's consent. InfoWorld has encountered this term more than once in negotiating with participants in database product comparisons, as have other publications. And just this past year Oracle refused PC Magazine permission to include Oracle8 in a benchmark comparison it was planning.

Because Oracle's license is not a shrinkwrap per se but an actual signed contract, PC Magazine didn't have a way to challenge the non-disclosure term.

But clearly, software publishers are willing to use non-disclosure license terms to prevent reviews of their products.

Similar terms are showing up in shrinkwrap contracts. Network Associates Inc., for example, has similar non-disclosure terms in some shrinkwrap licenses.

Remember how belligerent NAI got over one of our readers reporting a dangerously destructive bug? If UCITA becomes the law, will one even be able to report a bug to the press without violating the license agreement?

Got a complaint about how a vendor is treating you? Write to InfoWorld's reader advocate, Ed Foster, at gripe@infoworld.com.

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