Speakers:
Pro - Ray Nimmer, University of Houston
Con - Jane Winn, Law School of SMU
The Association for Software Engineering Excellence (ASEE) sponsored this debate, which was a great opportunity to hear from Ray Nimmer, the primary UCITA author, and to hear his response to the tremendous amount of opposition to UCITA. This writeup was done on a tight deadline, so those who aren't familiar with UCITA will need to follow some of the links herein to fully understand the UCITA controversy and why software professionals should care about it.
Both speakers appeared to be nervous before the crowd of about 30 technical people, especially Ray. He got the acronym wrong for the UCITA sponsoring organization that he has been working closely with - calling it NCCSUL rather than NCCUSL. I heard that he had prepared his notes only a few hours before. Watching Jane was quite entertaining, as she talked a mile a minute. She ran out of time long before she ran out of slides, and she offered to speak even faster to make up the difference. One thing that was a bit surprising to me was that everyone was very civil. Having read some passionate opposition to UCITA, I was prepared for a bloody battle. Both speakers acted very professionally toward each other, and Jane especially showed great respect for Ray. The audience included north Texas local James Huggins, author of a low-key anti-UCITA web site.
My background with UCITA comes mostly from information from my colleague Cem Kaner, who created the Bad Software consumer protection web site. Cem has a legendary background in the software quality field and is also a practicing attorney - an ideal combination for a software consumer advocate. He put tremendous effort into attending the drafting meetings for UCITA and its predecessor, UCC Article 2B. He disagreed with many decisions that were made, and he reports that he was generally ignored by the drafting committee despite repeated attempts to help them fix the problems. Other participants have corroborated this. See the Bad Software web site for his voluminous arguments against UCITA, and also see the AFFECT web site for further anti-UCITA information. I won't try to regurgitate all of the issues here.
So I was expecting a colorful discussion. Ray's side of the debate sounded great. His philosophy is that contract law should support software contracts using default rules, but the law should not regulate contracts. So if a contract leaves out some essential details, the law should provide a default. Some of the controversy apparently comes from the fact that UCITA does not specifically prohibit some practices. He implied that UCITA doesn't have much of anything to do with shrinkwrap mass-market software (this is a big point of contention with anti-UCITA advocates). Ray overall presented what sounded like a sound argument. However, he did very little to directly address the many criticisms that have been directed toward UCITA. He did not fill all of his allocated time slot.
Jane started by comparing herself to Dr. Seuss's Lorax, apparently considering herself the underdog. After all, the act's author is right here in Texas - its opponents face a mighty foe. She gave a nice legal history of what led up to UCITA (remember, she's a law professor). She mentioned the shrink-wrap license issue, and seemed to say that post-sale contract modifications are okay if we follow the model of copyright law, as in the sale of books. I didn't quite get the point there. She mentioned the UCC provision that requires that the warranty for consumer goods be available to the customer before the sale, and asked rhetorically how many customers actually ask to read the warranty for a TV before buying it.
Jane's gripes about UCITA are summed up nicely in a letter she wrote to the State Bar of Texas. Jane's full presentation is also available on the web. Her arguments are not as broad nor as categorical as what you'll hear from most anti-UCITA crusaders. She does think that UCITA is generally hostile to consumers and is poorly drafted. And one big point of contention is that UCITA does not reflect a consensus of the parties who were involved in the drafting process. The American Law Institute withdrew from the drafting process, and unprecedented action in the history of uniform law. Jane provided a sharp contrast to the UETA law. This law was drafted by the same body as UCITA, and generated the same amount of controversy. But the drafting committee used mediation techniques to resolve the problems and ended up building a decent consensus among all participants. UETA has passed in roughly 25 states in the same time that UCITA has passed in 2.
And what does Ray think about all this? I asked him what he thought about all of the anti-UCITA sentiment. He feels that 80% of it is misrepresentation, based on incorrect interpretations of the law. For example, regarding the "self-help" issue, where software vendors can remotely shut down the application if they feel the contract has been broken, this is allowed only if a licensee explicitly agrees to this in a contract. And potential restrictions on whether licensees can make public comments about a product, he again says that this is not forbidden by UCITA, but that it only applies if the parties involved both agree to it in a contract. Ray feels that opposition as expressed by Jane is well worth consideration, but in the balance he feels that UCITA is good.
Personally, I'm not sure what to conclude about most of the anti-UCITA commentary, except that much of it is coming from people that I respect, and that they were treated very poorly by the drafting committee. But if we look at the 20% of it that is not in contention, based on Jane's comments alone, I would still choose to oppose the passage of UCITA in Texas. Texans can find their state representative at the Texas House of Representatives page and tell them what they think.
It is likely that UCITA will be introduced in Texas' current legislative session, probably to be filed by the Business Law Foundation, an arm of the State Bar of Texas. Jane feels that legislators will not be willing to go out on a limb to support it if they hear the opposition, and other initiatives are likely to take priority during this session. The legislators aren't likely to read the law themselves, but will depend on the opinions of others. Watch AFFECT's Texas page for details.