Uniform Computer Information Transactions Act

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The Uniform Computer Information Transactions Act ( UCITA ) was a controversial US legislative proposal from 1999 to revise contract law for software . It saw u. a. provides that license agreements are also valid if the customer can only view them after purchasing the product. In addition, software companies should be given the right to “switch off the license”, for example when a license expires by deleting it on the customer's computer via the Internet. The project was declared a failure in August 2003 . However, it was ratified in the states of Virginia  and Maryland in 2000 and was still in force there in 2008.

background

Licenses were individually negotiated and signed contracts between companies, until the PC became an anonymous mass market for software. The “content owners” developed simplified anonymous licensing procedures for this area. The licenses of the free software also provide for the same mechanism that the user shows his consent to the license conditions by distributing or changing the program. Despite some precedent judgments that confirm the legality of shrink wrap licenses, some courts still refuse to enforce shrink wrap licenses.

With the payment of the goods in the shop, so the argumentation, a sales contract was concluded. The license, which the buyer can only take note of when he opens the package, is an attempt to subsequently change the nature of the transaction through additional conditions. The buyer must agree to these changed contractual conditions separately, and a click of the mouse is not enough.

The lawyer Jürgen Siepmann wrote in 1999 for the German legal situation:

“ General terms and conditions on protective covers of data carriers (so-called 'Shrink-Wrap-Agreements') are generally not valid from a contractual point of view, as these can only be acknowledged after the contract has been concluded. However, they can be of importance in terms of copyright "

This legal uncertainty should be eliminated in the course of the revision of the US Uniform Commercial Code (UCC), the equivalent of the German AGB. The reason given was:

“As the nation shifts from an economy centered around goods and service transactions to an information economy, the need for consistent and predictable legal norms on which the contracts that underlie that economy are based has increased dramatically . A lack of uniformity and clarity in the legal norms governing these transactions creates uncertainty, unpredictability and high transaction costs. ”(ALI and NCCUSL, press release, April 7, 1999)

The reform of the UCC was jointly pursued by the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL), since contract law in the USA is a matter for the states. Initially, the provisions on computer programs were planned as Article 2b of the UCC, with the law otherwise dealing with trade in material goods.

In mid- 1999 , the parties announced that the rules for transactions in computerized information should be regulated in a separate framework law, the Uniform Computer Information Transactions Act (UCITA), which should be implemented in the individual US states. The current version was that of February 9, 2000, drafted in July 1999. Maryland and Virginia had already passed corresponding laws.

The UCITA should have shrink wrap (section 209) and online licenses (section 211) for the use of “computer information” (not just programs, but any type of electronic content that can be processed by a computer, including the associated Documentation - Section 102.10), provided the licensee has the opportunity to take note of the contractual conditions before he has to manifest his consent. In addition, the UCITA should regulate access to online information for a certain period of time (Section 611).

The passage that would have allowed software manufacturers to incorporate mechanisms for electronic self-help repossession ( e.g. re-appropriation through electronic self-help) into their products was particularly controversial, which could be triggered by the licensee in the event of a breach of contract (Section 816). "Re-appropriation through electronic self-help" means that the company would have received the right, in the event of an (actual or perceived) violation by the licensee, to revoke the license without having to go to court and to allow the program to run 15 days after prior warning by electronic means To block. In the debate, there was talk of “properly configured electronic means”. The official comment states:

"The previous legal situation regarding the use of electronic means to remedy violations is unclear."

The "self-help" of the industry is tied to certain conditions (the section is not titled "Self-Help", but "Limitations on Electronic Self-Help"), but this "re-appropriation" was criticized for the fact that the legal interests of the protected Privacy (the user's hard drive) should be restricted in the interest of the right of copyright owners to control the use of their works, and that the interface for "self-help" could be misused by third parties.

The UCITA would also have legalized a ban on the resale of mass market licenses, provided it is clearly indicated (Section 503.4).

Further criticism concerns UCITA's intended limitation of the warranty, which would have enabled software manufacturers to limit warranties due to a lack of care on the part of the customer in maintaining the functionality of the operating system installation: According to the criticism, this would have made new techniques for monitoring users necessary and by the Limitation of the liability conditions led to a decline in software quality.

The lawyer employed by Microsoft , Robert Gomulkiewicz, argued that precisely these liability and warranty restrictions are beneficial to the development of open source software , as they keep these risks away from the individual working open source developers. The opportunity for commercial software manufacturers in this situation is that they can offer customers better conditions.

The engineering association IEEE argued that the UCITA undermined the freedoms granted by US federal copyright law , such as fair use and the permissibility of reverse engineering for the purpose of developing compatible products .

The tasks of the libraries , such as making knowledge accessible and maintaining it, can be made contractually and technically impossible.

The copyright officer of the Federal Association of German Library Associations , Beger , warned against adopting the UCITA regulations in Germany :

“This means that with increasing dissemination via license agreements, the exceptions in the copyright laws lose their meaning unless they are mandatory and cannot be excluded by contract. Therefore, the aim of all efforts within the framework of legislative procedures must be to achieve mandatory standards on the exceptions that guarantee unhindered access to information for everyone, including in the digital environment, in accordance with the three-step test in accordance with Article 9, Paragraph 2 of the RBC. "

literature

Individual evidence

  1. ↑ Bury the UCITA software law - Pro-Linux . Pro-linux.de. Retrieved July 7, 2010.
  2. ↑ UCITY , Software Asset Management Services, Inc retrieved 1 January 2014
  3. ↑ Jürgen Siepmann: Licensing and Liability Issues in the Commercial Use of Free Software , Para. 53
  4. ^ National Conference Of Commissioners . Law.upenn.edu. April 7, 1999. Archived from the original on November 11, 2005. Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved July 7, 2010. @1@ 2Template: Webachiv / IABot / www.law.upenn.edu
  5. ^ Uniform Computer Information . Law.upenn.edu. Archived from the original on February 8, 2006. Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved July 7, 2010. @1@ 2Template: Webachiv / IABot / www.law.upenn.edu
  6. ↑ PART 1: GENERAL PROVISIONS . Law.upenn.edu. Archived from the original on July 4, 2008. Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved July 7, 2010. @1@ 2Template: Webachiv / IABot / www.law.upenn.edu
  7. ↑ a b Wolfgang Stieler: UCITA: License to switch off . In: c't . No. 17 , 1999, p. 22 ( online ).
  8. ↑ Florian Rötzer: License to switch off . Telepolis , article of July 14, 1999
  9. ↑ Florian Rötzer: UCITA and Open Source ( Memento from January 4, 2014 in the Internet Archive ). Telepolis , article of July 14, 1999
  10. ^ Opposing Adoption of the Uniform Computer Information Transactions Act (UCITA) By the States ( Memento of August 31, 2004 in the Internet Archive ), position of the IEEE
  11. ^ Association of Research Libraries: Association of Research Libraries :: Copyright & Intellectual Property Policies . arl.org. Archived from the original on September 27, 2007. Retrieved July 7, 2010.
  12. ↑ Gabriele Beger: Knowledge as a commodity or a public good / balance of interests ( memento of the original from March 4, 2016 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , wissensgesellschaft.org, accessed January 4, 2014 @1@ 2Template: Webachiv / IABot / www.wissensgesellschaft.org

Web links