1. UCITA: Enforceability and Fairness of Negotiated, Shrinkwrap, and Click-Through Licenses James Neal Dean of University Libraries Johns Hopkins University Rodney PetersenDon Riley Director, Policy and PlanningAssociate Vice President & CIOUniversity of Maryland EDUCAUSE2000  Nashville, TN October 11, 2000

2. State of Maryland’s 2000 Technology Goals Protect and expand Maryland businesses by establishing a bold framework for the digital economy, encouraging growth, and preventing fraud. Provide security for our families with strong consumer protections, privacy guarantees, and aggressive efforts to protect our children from the potential dangers of the Internet. Dramatically improve customer service by making Maryland a national leader in delivering government services over the Internet. Enable law enforcement to fight digital crime.

3. State of Maryland’s 2000 Technology Agenda GOVERNOR'S INITIATIVES eMaryland: Becoming the Number One E-Commerce State in the Nation Establishing a CEO Board of Advisors for E-Commerce Expanding the Internet Technology Investment Fund to Provide for Application Services Provider (ASP) Projects Expanding Government Services On-Line Restructuring the Information Technology Board Guaranteeing the Right to Privacy for Citizens Protecting Citizens from Computer Crimes

4. State of Maryland’s 2000 Technology Agenda GENERAL ASSEMBLY'S INITIATIVES Adopting Uniform Electronic Transactions Act (UETA) Adopting the Uniform Computer Information Transactions Act (UCITA) Helping Start-Up Companies Grow and Thrive Regulating Unsolicited Email Prohibiting Unauthorized Access to Computers Expanding Anti-Child Pornography Laws to the Internet Enabling Law Enforcement to Seize Child Pornography Materials

5. Maryland Information Technology Board Internet Policy Recommendations Creating a More Efficient and Citizen-Focused Government through Internet Applications; Promoting Electronic Commerce in Maryland; Facilitating Information Technology Research and the Development of New Technologies; Fairness and Neutrality in Tax Policy; Bridging the Digital Divide; Protecting Citizen Privacy; Unsolicited Bulk E-Mail; The Internet’s Emerging Role in Health Care; Federal Health Insurance Portability and Accountability Act; and Internet and Computer-based Crimes

6. IT Board Recommendation: “Enlightened Policies on Commercial Law” Maryland should provide a legal framework that promotes and enhances the incorporation of e-commerce into everyday business operations. National model legislation has been developed to establish a level playing field for electronic commerce in every state.

7. Uniform Computer Information Transactions Act (UCITA) A much more comprehensive model law, the Uniform Computer Information Transactions Act (UCITA) sets forth a legal environment for the use and licensing of software programs. UCITA is particularly timely as Maryland and the rest of the country move to an ASP environment where software is more likely to be "rented" and accessible over the Internet, rather than being purchased and loaded into an individual’s computer system. UCITA, however, is a lengthy and complex piece of legislation. The Maryland Attorney General has written a letter expressing concern about several aspects of UCITA. In light of these complexities, the ITB recommends that the Maryland legislature hold hearings on UCITA to determine its appropriateness to our State.

8. UCITA: History Uniform Commercial Code Article 2B UCC –Sale of “goods and services” –Leases of “personal property” National Conference of Commissioners on Uniform State Laws (NCCUSL) American Law Institute (ALI) UCITA – July 1999

9. Status of UCITA In The States Virginia – passed UCITA but delayed implementation until 2001 pending the outcome of a study by the Joint Committee on Technology and Science and the implementation of its recommendations Maryland – passed UCITA with amendments. Became effective on October 1 st California – legislators have decided not to introduce legislation this year Delaware – tabled in the House for this year and will not move in the Senate District of Columbia – D.C. has introduced the measure and it awaits a public hearing

10. Status of UCITA in the States Hawaii – introduced but no action was taken Iowa – legislation passed that protects Iowa businesses and consumers from the effects of UCITA Illinois – introduced but tabled indefinitely Louisiana – a motion to study and “reverse engineer” UCITA to comply with Louisiana state law has been introduced Maine – UCITA tabled until 2001 Oklahoma – UCITA has passed the Senate and House but was not conferenced. The legislation will undergo an interim study before further consideration

11. Core Library Concerns Copyright/Fair Use Self-Help Mixed Transactions Mass Market Definition Warranties/Known Defects

12. Core Library Concerns (cont’d) Choice of Law/Forum Reverse Engineering Privacy/Free Speech Cost of Doing Business Digital Divide

13. Intellectual Property Developments International Treaties National Legislation Licensing Arrangements Use Guidelines Technological Controls Author Assertion of Ownership Rights

14. Recent Copyright Legislation in U.S. Copyright Term Extension Digital Millennium Copyright Act Collections of Information Antipiracy Act Consumer and Investor Access to Information Act Uniform Computer Information Transactions Act

15. Copyright Issues in the Digital Environment Digital and Network Distribution and Copying International Harmonization Fair Use and Access Prohibitions Online Service Provider Liability Copyright Management Systems and Anticircumvention

16. Copyright Issues in the Digital Environment (cont’d) Term Limitation and Commercial Exploitation Learning and Internet Maintenance of Public Domain New Licensing Regime for Facts Importance of Contract Negotiations

17. Library and Education Community Amendment to UCITA “When the licensee in a non-negotiated license under the Act is a library, archive, or educational institution, a term which hasthe effect of restricting the provisions of 17U.S.C. Sections 102(b), 107, 108, 109, 110,112, 121, 512 and 120(a)(1)(C) and (d)-(k) shall not become part of the license.”

18. Adopted Amendment on Copyright in Maryland UCITA Law “A contract term is unenforceable to the extent it would vary a statute, rule, regulation, or procedure that may not be varied by agreement under the federal copyright law.”

19. The Goals of the Education Community Develop policies for intellectual property management that: –enable broad and easy distribution and reuse of materials by scholars and students –foster a competitive and supportive market for scholarly communication and creative work

20. State Level Considerations for UCITA Legislation Copyright is Unfamiliar Librarians and E-Commerce Economic Development Imperative Maryland as Prototype Flood of Lobbyists

21. State Level Considerations for UCITA Legislation (cont’d) Nature of Compromise Process Industry Exclusions Importance of Librarian Lobbying Confidence in Federal Preemption Influence of Leadership States Rights/Immunity

22. State Level Considerations for UCITA Legislation (cont’d) Attorneys in the Legislature Bias Toward Proponents Knowledge of Legislation Libraries as Pirates Libraries Trying to Get What They Could Not at Federal Level

23. State Level Considerations for UCITA Legislation (cont’d) Amendments Process/Work Groups Quieting of Public Agencies Concerns About Uniformity Digital Divide UCITA for Electronic Information

24. Broad Campus Involvement Library University Counsel Information Technology Government Relations R & D/Technology Transfer Purchasing Academic Leadership

25. Role of Librarians Knowledgeable Resources for the Community Political and Legislative Advocates for Community Interests Education in Community on Respect for Copyright

26. Role of Librarians (cont’d) Documenters of Impact of Changes in Copyright Laws Aggressive Negotiators of License Agreements Active Supporters of New Strategies for Ownership of Intellectual Property

27. For more information, see: UCITA – Summary and Implications for Libraries and Higher Education http://www.arl.org/info/frn/copy/ucitasum.html Association of Research Libraries (ARL) Teleconference on UCITA http://www.arl.org/ucita.html UCITA in Maryland http://www.oit.umd.edu/pp/policy/ucita