Medical Library Association | Public Policy : Uniform Computer Information Transaction Act (UCITA)

Uniform Computer Information Transaction Act (UCITA)

Joint Library Association Testimony on UCITA

Statement of James G. Neal, Dean, University Libraries - Johns Hopkins University
On behalf of the Maryland Library Association, American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association and Special Libraries Association
Before the Maryland General Assembly's Joint Meeting of the Senate Finance Committee and the House Economic Matters Committee

February 3, 2000

Mr. Chairmen,

I am James G. Neal, Dean, University Libraries, Johns Hopkins University and Past President of the Association of Research Libraries and a current member of the Executive Board of the American Library Association. I have been very active on intellectual property matters, serving as an advisor to the American delegation at the World Intellectual Property Organization treaty negotiations in Geneva in 1996, testifying before congressional committees on copyright legislation, and participating on national and international committees working on intellectual property matters for a digital world.

I am testifying today on behalf of the Maryland Library Association and the nation's major library associations: the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. Collectively, we represent 80,000 librarians in research, academic, medical, public, law, state-based, and special libraries throughout North America. Thank you for the opportunity to appear before these two Committees to share our views of House Bill 19/Senate Bill 142 -- the proposed Maryland Uniform Computer Information Transactions Act (UCITA).

The proponents of UCITA are hoping that Maryland and other states will enact a uniform set of rules for commercial transactions involving electronic information. We can appreciate that goal. We believe, however, that the rules as set out in UCITA will do that in a way that will harm software consumers and users of electronic databases which, in addition to many businesses and individuals, include Maryland libraries of all kinds.

Our state's libraries have embraced technological advances and are a significant element in Maryland's electronic commerce. We not only provide patrons with computerized access to electronic information products and services, we use software to run our internal operations. As a result, we are among the largest consumers of software. We are also the largest consumers of fee-based electronic services and databases: the nation's public, academic, medical, special and government libraries expend hundreds of millions of dollars in fees each year for databases and electronic library materials.

For example, in the current fiscal year, the acquisitions budget for the libraries at Johns Hopkins University is over $9 million with approximately $2 million devoted to the purchase or licensing of electronic and online resources. These figures do not include hardware, software, network support and equipment, or personnel. Unfortunately, as I explain below, if the Maryland UCITA is enacted, research and educational institutions would see a substantial rise in their cost of access to information, which is their life-blood. In addition, as with businesses, UCITA would likely apply to applications software utilized across the entire academic and library enterprise -- affecting information databases; payroll operations; safety, health and environmental programs; accounting systems; and more.

The library community, therefore, has a huge stake in the outcome of your deliberations on the future of UCITA here in Maryland. Although we have many concerns with UCITA, I would like to bring to your attention this afternoon some of the major areas of concern to the library community.

First is our concern with UCITA's validation of shrink wrap and clickable licenses. Currently, many software and information products are sold as shrink-wrapped packages or as products downloaded through the Internet from a vendor's web site. Indeed, obtaining software and information products through the Internet is an important element of e-commerce that is a convenience for us all. However, when a buyer breaks the wrapping or clicks "ok" with his or her mouse, that buyer is entering into a contract or license with terms that may restrict otherwise legitimate uses of the product, such as legally transferring the software or digital works; publicly discussing the product; or providing access to other users. And the buyer likely does not even know that he or she has agreed to those contract terms.

Although many courts today would not enforce such restrictive terms in "shrink wrap" and "click-on" licenses, particularly against researchers, under UCITA [Section 21-209] those terms would be enforceable with very few exceptions short of "unconscionability." Moreover, under UCITA [Section 21-102(44)] even those few exceptions would not be available to libraries, or to businesses, when they purchase or license products through "shrink wrap" and "click-on" licenses. For a product obtained in that manner -- as opposed to the typical contracts or license agreements that libraries negotiate to obtain library materials -- a library may find that the terms of the license agreement restrict uses that are otherwise allowed under copyright law, such as making copies for library patrons. In other words, UCITA would allow an end run around currently legitimate practices under the copyright exceptions for fair use, first sale, and preservation.

Second, UCITA [Section 21-112] would make it easier for a researcher or librarian to enter into a license agreement in which he or she inadvertently releases valuable information rights to a publisher to the detriment of their institutions.

Third, UCITA's provisions [Sections 21-605 and 21-815] on electronic regulation of performance and electronic self-help would permit a licensor to recover its data or prevent the use of its product when a license expires. These provisions would seriously undermine a library's traditional role of preserving information resources. In addition, the electronic self-help provision of a manifesting assent" has no requirement of conspicuousness and there are insufficient procedural protections when you consider the potential disruption to expensive and sensitive research.

Finally, UCITA assumes a competitive market, where users have meaningful choices between vendors who compete with each other. For some types of software and information products and databases, there is virtually no competition. This is certainly true with many of the products marketed to educational institutions. This absence of competition would allow licensors to exploit the provisions of UCITA and to impose onerous terms that the institutions would be unable to negotiate because they would have little or no bargaining power.

In summary, the provisions of UCITA would substitute the private law of contract for the public law of copyright in ways that would be detrimental to consumers, including libraries. We oppose UCITA in its current form and urge that it not be recommended for adoption without a more thoughtful study of its effects on all of Maryland's citizens.