July 12, 1999
Gene N. Lebrun, President
National Conference of Commissioners on Uniform State Laws
211 E. Ontario Street, Suite 1300
Chicago, Illinois 60611
Dear Mr. Lebrun:
The five undersigned library associations wrote to you on October 8, 1998 to convey our continued concerns regarding the then-titled Article 2B. We are again writing to you to convey our serious concerns with what is now referred to as the proposed Uniform Computer Information Transactions Act (UCITA). Despite a status change, a new name, and some minor modifications to the content of the draft, UCITA poses significant challenges to libraries and to the key role they play in our Nation. Should NCCUSL approve UCITA, we find we must oppose its enactment.
In our October 8, 1998 letter, we noted three broad concerns about Article 2B and submitted several section-specific questions and concerns. Our primary concerns related to (1) the scope of Article 2B including its application to printed materials; (2) the lack of guidance related to federal preemption; and (3) the implementation of the Perlman motion from last year's NCCUSL meeting. We appreciate that in the new drafts developed over the past eight months, some of our concerns have been addressed in part, but many of our fundamental concerns still remain. Rather than present a section-by-section analysis, we are writing to convey our general concerns about UCITA and our rationale for requesting that the draft not be accepted by NCCUSL at its July meeting. However, if we were to present a section-by-section review, we would focus upon the following provisions that raise issues for libraries:
Many of the definitions in Section 102, including "Access Contract;" "Computer Information;" "Computer Information Transaction"; "Conspicuous;" "Consumer;" "Consumer Contract;" "Contractual Use Restriction;" "Electronic Agent;" "Information;" "Informational Rights;" "License;" "Mass-Market Transaction;" "Merchant;" "Published Informational Content;" and "Return;"
Section 103 [Scope] (particularly the special interest carve-outs and the "opt-in" provision);
Section 105 [Relation to Other Law];
Section 107 [Electronic Agents];
Section 109 [Choice of Law];
Section 110 [Choice of Forum];
Section 112 [Manifesting Assent];
Section 205 [Conditional Offer or Acceptance];
Sections 210 & 211 [Mass-Market Licenses]
Section 213 [Internet Transactions];
Sections 214 &215 [Attribution Procedures];
Section 308 [Duration];
Sections 502, 503 & 506 [Title to a Copy and Transfers of Interests];
Section 605 [Technical Restraints];
Section 611 [Access Contracts]; and
Section 613 [Dealer Contracts].
The UCITA Framework and Libraries
Libraries are a crucial component of the intellectual and social fabric of this country. Libraries throughout the Nation, acquire, maintain, preserve, and provide access to a vast array of resources in multiple formats to serve diverse constituencies. Many types of libraries serve these different communities. For example, there are 16,000 publicly supported community libraries, 4,700 college and university libraries, 98,000 school library media centers, approximately 2,500 health sciences libraries in community-based hospitals, 150 academic health center science libraries, 1,800 law libraries, 122 research libraries, 172 VA hospitals, and special libraries in corporate and other settings throughout the Nation. Individually and collectively, these institutions support the open exchange of information on behalf of users in local, state, and regional communities, special libraries, college and university settings, medical and legal institutions, and more. Given their key role in serving the public, libraries are often seen as representing the interests of the public on a host of issues including intellectual property and copyright issues. Thus on issues such as UCITA, representatives of libraries of all types believe that a balance between the interests of users and owners of information is essential to both the success of our information economy and to the effective delivery of library services throughout the Nation.
As a player in the information economy, we believe that despite its complexity, the drafters of UCITA present an overly simplistic view of the marketplace for information. This view we believe, would undermine the ability of librarians to meet the needs of our diverse user communities. For example, with UCITA, one is either a licensee of information (a consumer) or a licensor (an information merchant). Although this simple commercial model may seem natural because UCITA is a commercial statute, the regulation of the information economy cannot be approached in such elementary terms. This model fails to incorporate important features of the market for intangibles and the ongoing roles of players in that market who are neither consumers nor merchants.
Libraries do not fit into the binary system of UCITA nor do educational institutions nor many commercial entities. Libraries play publicly and privately supported intermediary roles. 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. To successfully achieve this goal, libraries need to be able to purchase materials and contract for access to information on behalf of their patrons; to make the materials available on a non-discriminatory basis to patrons; and to ensure that there are adequate and appropriate terms and conditions for access on the use of the materials.
Another important role played by libraries is the preservation of our cultural and historical heritage. Licenses that restrict a library's ability to preserve and provide permanent access to digital information significantly hinder, indeed could make impossible, the ability of current and future generations to build upon prior research and benefit from our Nation's rich cultural heritage. Libraries also serve a key function in providing access to public domain resources. Ensuring a rich and robust public domain is a central concern of all libraries.
Finally, libraries spend over $2 billion each year acquiring information resources in all formats. Yet if enacted, UCITA will create new layers of costly procedures for libraries. It is not clear how these institutions will be able to support such new measures. For example, under the terms of UCITA, increased licensing means that more time will be needed to educate library staff, to negotiate licenses, to track use of materials, and to investigate the status of materials donated to libraries.
The approach and terms of UCITA challenge the very core of these fundamental activities of libraries.
UCITA Displaces Copyright Law
Although UCITA appears to be narrower in scope than earlier proposals, it will still sweep in many kinds of information products and services. It casts a wide net over the muddy waters of "computer information" and, in some sections, "information" as such, enabling new constraints to be imposed on public domain information and information products including ones currently protected by intellectual property law.
Libraries support the full and open exchange of information and have actively promoted intellectual property regimes that encourage the exchange of knowledge. As noted earlier, libraries believe that, in general, copyright law strikes an appropriate balance between the interests of users and owners of information. On the other hand, UCITA creates a new form of intellectual property by legitimizing shrink wrap or click on licenses which may include terms that inappropriately restrict use by the purchaser or user.
Although the non-negotiated contracts which UCITA legitimizes or makes enforceable are not intellectual property laws as such, they would have such general force that they would effectively displace some underlying policies of federal intellectual property, undermining the balance so crucial to the success of our information economy. Thus the balanced set of principles and privileges, developed over many years of legal precedent, under which we currently operate such as fair use, preservation, and more would be weakened under a regime such as UCITA.
Finally, it is worth noting that another effect of UCITA is to provide extensive protection for many information compilations and databases without full resolution of the ongoing Congressional deliberations regarding the appropriate level of new protections for databases. This is in effect an end run around Congress' role in setting national information policy. More generally, the breadth of UCITA guarantees that were it adopted, significant new questions of preemption would arise under federal law. The uncertainty generated by such protracted litigation would complicate the work of information providers and consumers alike. But this result might be avoided if the present version of UCITA were withdrawn for reconsideration.
UCITA Should be Tabled and Reconsidered
We submit this letter in an effort to raise the awareness of the Commissioners to our opposition to UCITA as a whole. UCITA interferes with existing intellectual property law and commercial law; it will jeopardize the public domain; it will require new burdensome procedures in our institutions; it is rife with confusing and inconsistent terminology; and it is anti-consumer. As a result, and perhaps of most importance to our members, UCITA would undermine current and widely accepted functions of libraries.
We believe that sending UCITA out to the States at this juncture would be a critical mistake. It is the view of our member organizations, on behalf of the thousands of libraries and librarians that we represent, that UCITA should be tabled. Furthermore, once tabled, UCITA should not be resurrected until it is properly positioned to deal with codification of tested and accepted legal practices and rules.
We appreciate your attention to these concerns as you deliberate the future of UCITA during your upcoming meeting.
Duane E. Webster
Association of Research Libraries
Roger H. Parent, Executive Director
American Association of Law Libraries
David Bender, Executive Director
Special Libraries Association
Carol Henderson, Executive Director
American Library Association
Carla Funk, Executive Director
Medical Library Association