1. Problems Presented by the New State Uniform Computer Information Transaction Act (UCITA) Respecting the Use of Electronic Resources Vicki L. Gregory Professor and Director School of Library & Information Science University of South Florida

2. Overview ßWhat is UCITA? ßHow does UCITA Mesh with Federal Copyright Law? ßImplications for Libraries and Information Centers. ßHow is UCITA Faring in State Legislatures? ßWhat Should a Library Do If UCITA is Passed in Your State?

3. What is UCITA? ßProposed Uniform State Law ßSoftware and database licensing issues ßFormats potentially affected: ßComputer software, documentation, databases, websites, e-books and e-serials, movies and sound recordings ßTypes of licenses affected: ßSigned licenses ßShrink-wrap licenses ß“Click-through” licenses

4. SCOPE of UCITA ßApplies to computer information-only transactions. ßApplies to mixed transactions that include both computer information and other matters (such as services). ßApplies to an entire transaction only if computer information is the primary subject matter.

5. How Does UCITA Mesh with Federal Copyright Law? ßUCITA is state-based rather than federal. ßBecause UCITA must be passed by each state legislature to be effective, UCITA provisions may vary from state to state. ßIt is possible to sign a contract that takes away rights granted under Federal copyright law except in a few instances (music residuals and a few similar situations).

6. Copyright Protection versus Licensing ßLicensing may restrict rights of libraries normally protected by copyright laws ßFirst Sale Doctrine ßLicensing Differences: Ownership of a copy versus “use” rights

7. Copyright versus Licensing ßCopyright represents a set of general regulations negotiated and developed through Congressional statutory enactment. The same laws and guidelines apply to everyone in the country. ßLicenses, or contracts, represent a market-driven approach to such regulation. Each license is arranged on a resource by resource basis.

8. UCITA: Implications for Libraries ßConcerns that UCITA will replace the public law of copyright with the private law of contracts. ßConcerns that UCITA will undercut traditional fair use of products. ßConcerns that UCITA will undermine libraries in the preservation and lending of information products.

10. UCITA: General Concerns that May Affect Libraries ßUCITA binds companies to license terms in software acquired by employees (or library users?) without prior authorization. ßUCITA allows software vendors to prohibit contractually public criticism of their product. ßUCITA allows software vendors to shut down software remotely without court approval and without incurring liability for the foreseeable harm caused.

12. Concerns (Continued) ßElimination of “first sale” ßUCITA allows software vendors to prohibit even the transfer of software from one company to another (or from one user to another). ßUCITA binds purchasers to terms disclosed only after payment is made.

14. How is UCITA Faring in the States? ßVirginia -- signed into law March 14, 2000, becomes effective July 1, 2001 ßMaryland -- signed into law April 25, 2000, became effective October 1, 2000. ßUCITA legislation is currently hot in: ßArizona ßFlorida ßGeorgia ßIllinois ßMaine ßTexas

15. Responding to Attempts in Your State to Pass UCITA ßProvide Information to Legislators ßAscertain which Version of UCITA is Being Considered ßAlign with other Interest Groups, such as Insurance Companies, Publishers etc. ßConsider compromises, such as removal of anti-criticism provisions, time bomb provisions, etc.

17. What Should You Do if UCITA is Passed in Your State? ßEducate your staff and users as to differences UCITA may make in how they use online products. ßMake and maintain an up-to-date file of all computer licenses. ßKeep copies of all licenses, even “shrink-wrap” licenses. ßPrint copies of all online, “click-through” licenses, and then file for future reference.