ARCHIVED: Joint Library and Education Letter to the President and House of Delegates of the American Bar Association

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ALA
American Library Association
Washington Office

1301 Pennsylvania Avenue, NW
Suite 403
Washington, DC 20004-1701 USA

Telephone 202 628 8410
Fax 202 628 8419
E-mail: alawash@alawash.org

January 30, 2003

OPEN LETTER TO THE PRESIDENT AND HOUSE OF DELEGATES
OF THE AMERICAN BAR ASSOCIATION

On behalf of the American Library Association, the American Association of Law Libraries, the American Association of Research Libraries, the Special Libraries Association, the Medical Libraries Association, and the Association of American Universities we write to you today to ask for your assistance when the House of Delegates deliberates the merits of the Uniform Computer Information Transactions Act (UCITA) during the ABA 2003 Midyear Meeting. We strongly urge you to oppose Resolution 113G proposed by the National Conference of Commissioners on Uniform State Laws (NCCUSL) that approves UCITA as amended in 2002 as an appropriate Act for consideration by state legislatures.

Libraries and educational institutions are among the largest consumers of software and fee-based electronic services in the country, licensing hundreds of millions of dollars a year in computer information products including databases, online journals, CD-ROMs, e-books and business software. We have been following the progress of UCITA since it was conceived as "UCC2B" and have been involved in legislative discussions concerning it in over twenty states since 1999. Critics of our position regarding UCITA allege-quite wrongly-that we are merely seeking to avoid being subject to terms determined by copyright owners or that we seek a law that bans licensing altogether. What is true is that as major consumers of software products, we are accustomed to operating according to myriad contracting terms and, therefore, appreciate the impact of those terms on our ability to serve our respective communities.

Our concerns about UCITA have always been twofold. Like other business users we believe that UCITA gives licensors great latitude to impose terms that will be detrimental to the management of our institutions. We are reasonably certain that UCITA would increase our administrative costs, threaten system security and undermine our patrons' privacy while minimizing requirements regarding the disclosure of and assent to terms, disclosure of known defects, and product warranties. It is an egregious misrepresentation of our position to suggest that we oppose UCITA so that we might obtain information products without licenses for free.

Libraries and educational institutions share others' concern that UCITA tips the balance of power in contracting situations decidedly to the advantage of the licensor, especially when the transaction involves non-negotiable licenses. UCITA does not inhibit licensors from including terms (such as limits on use which, in our case, means limits on the dissemination of information) that circumvent federal copyright doctrines that are essential to performing our core educational missions. Furthermore, it will take costly litigation to determine which terms-e.g., limits on use, transferring, copying-are enforceable under federal copyright law. Such litigation also would be conducted under the threat that our institutions, if they lose, would be liable for the substantial sums that accompany a violation of a copyright license. We find that UCITA does not provide the clear and unambiguous protections that are needed to protect important library and education functions that serve the public interest.

Libraries and educational institutions must take particular issue with the suggestion that our concerns about the interaction of UCITA and federal copyright law are unwarranted either because UCITA supposedly provides sufficient protections to our institutions or because these issues should rightfully be addressed at the federal level. We will continue to work with Congress regarding digital copyright issues but we would caution that our rights as vital public and private institutions are in danger of being redefined by restrictions imposed by non-negotiated contract terms. We believe it is entirely reasonable to expect that those responsible for drafting state laws ensure that contract law complements federal copyright law, not displaces it.

We are convinced that the amendments to UCITA approved by NCCUSL in 2002 do not substantively improve the Act or address our concerns about its impact on libraries and educational institutions. For example, we do not endorse NCCUSL Amendment #12 regarding the transferability of computer software to public libraries and elementary and secondary schools. The exemption does not extend to the full library community and, more importantly, provides much less transferability than the "first sale" doctrine of federal copyright law currently allows.

UCITA has generated unceasing controversy since its inception that has not abated with the recent amendments. In our view, the current version of UCITA continues to be inadequate in addressing the substantial concerns we and other opponents have been articulating for years. We continue to regard UCITA as a highly flawed piece of legislation that is still not an "appropriate Act" for referral to state legislatures. We urge you to vote against Resolution 113G.

Sincerely,

Emily Sheketoff
Executive Director
American Library Association
Washington Office

Duane E. Webster
Executive Director
Association of Research Libraries

Susan Fox
Executive Director
American Association of Law Libraries

Lynn Smith
Acting Executive Director
Special Libraries Association

Carla Funk
Executive Director
Medical Libraries Association

John Vaughn
Executive Vice President
Association of American Universities