The newest version of UCITA does come with some promising changes that could benefit IT, however. One of the biggest is the removal of an allowance in the original version that had let vendors remotely disable software if a user allegedly violated a license agreement. That's a hot button: It's akin to evicting a tenant without giving him due process. The new version of UCITA also specifies that the act does not replace existing state consumer-protection laws for unfair and deceptive business practices like price-fixing and other monopolistic actions. And it makes it clear that UCITA doesn't apply to free, open-source software such as Apache and Linux kernels. So you have the same freedoms as before with that kind of code.
Not all software-related contracts fall under UCITA's purview. While UCITA includes contracts for accessing computer information, the Internet and online electronic transactions and multimedia works, it excludes contracts for the distribution of printed information and for regulated telecommunication services and products.
Unfortunately, UCITA doesn't break much new ground in remedies and damages in software-licensing disputes, nor in warranties. It spells out what most states and the industry already do in these situations--UCITA calls for vendors to provide so-called implied warranties that guarantee the application does what it was created to do. But UCITA gives vendors the option to add a disclaimer, which does nothing to make the warranties stick and hold software vendors responsible for the condition of their software.
And ironically, UCITA so far has caused more division than unity among the states. Some states, including Iowa, North Carolina and West Virginia, have taken pre-emptive strikes against UCITA, with so-called "bomb-shelter" acts that can protect you in some cases. If an IT manager in Iowa purchased a software package from a vendor in Virginia, for instance, he could take his case to a federal district court in his home state of Iowa, where he would have copyright exceptions like "fair use" on his side, and wouldn't have to battle the UCITA interpretation in Virginia. Still, these bomb-shelter acts aren't bombproof, and could be challenged as unconstitutional.
Don't Call Judge Judy
So how will UCITA be enforced? Like any contract or license, it's up to the state and federal courts. In most cases under today's copyright contract laws, if your software does not perform according to contract, that constitutes a so-called material breach in the contract or license. You can cancel the contract and sue for damages or return the software. The same is true under UCITA, so not much changes there.
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