In the December 1999 issue of AALL Spectrum, Charles Cronin provided a fine overview of the Uniform Computer Information Transactions Act (UCITA) and its potential impact on libraries. As he indicated, the National Conference of Commissioners on Uniform State Laws (NCCUSL) offered UCITA to several state legislatures for consideration, with Maryland and Virginia vying to become the first state to enact it. Virginia, whose legislative session began a couple of months before Maryland’s and whose process did not allow much opposition, was first across the line. However, one amendment, included near the end of the process, delayed implementation of the Act until 2001

Morrell, Harvey K.

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University of Baltimore School of Law

University of Baltimore LawScholarWorks@University of Baltimore School of LawAll Faculty Scholarship Faculty Scholarship7-2000Copyright Corner: The Adoption of UCITA inMarylandHarvey K. MorrellUniversity of Baltimore School of Law, hmorrell@ubalt.eduFollow this and additional works at: http://scholarworks.law.ubalt.edu/all_facPart of the Intellectual Property Law Commons, and the Library and Information ScienceCommonsThis Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has beenaccepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For moreinformation, please contact snolan@ubalt.edu.Recommended CitationHarvey K. Morrell, Copyright Corner: The Adoption of UCITA in Maryland, AALL Spectrum, July 2000, at 8.8 AALL Spectrum  July 2000The Adoption of UCITA in Maryland: A View from the Trenchesby Harvey K. MorrellIn the December 1999 issue of AALLSpectrum, Charles Cronin provided a fine overview of the Uniform ComputerInformation Transactions Act (UCITA) and its potential impact on libraries. As heindicated, the National Conference ofCommissioners on Uniform State Laws(NCCUSL) offered UCITA to several statelegislatures for consideration, with Marylandand Virginia vying to become the first stateto enact it. Virginia, whose legislativesession began a couple of months beforeMaryland’s and whose process did notallow much opposition, was first across theline. However, one amendment, includednear the end of the process, delayedimplementation of the Act until 2001.Maryland passed an amended version ofUCITA on the very last day of the regularlegislative session. The bill was signed byGovernor Glendening on April 25 and willtake effect October 1, 2000. (You can see thefinal version online at: http://mlis.state.md.us/2000rs/billfile/hb0019.htm. Scroll down to near the end and click on “enrolled.”) Thelegislature in Maryland did seem more opento addressing some of the consumerprotection concerns expressed by the AttorneyGeneral’s office and other consumer groups.Law librarians were involved in the workinggroups dealing with these issues. While we were not successful in convincing thelegislators of the merits of all our argument on UCITA’s potentially devastating effect oncopyright and the free flow of information, we did gain valuable experience. In thisarticle I’ll offer a brief synopsis of the processin Maryland as well as some suggestions tolibrarians who may be engaged in opposingUCITA in other states. UCITA was introduced in both the Senateand House of Delegates on January 12,2000, and referred to the Senate FinanceCommittee and the House EconomicMatters Committee. Because the Act wasoffered as a departmental bill, the AttorneyGeneral’s office was not allowed to opposeit even though it was one of the originalopponents to UCITA. It was allowed to offer amendments, however. The main focusof the Attorney General’s office was onconsumer issues. It was joined in its effortsby 4Cite, a broad-based coalition of end-users and developers of computer andinformation technology, which includes the library and education communities(AALL’s Associate Washington AffairsRepresentative, Mary Alice Baish, spentcountless hours in Maryland and wasinstrumental in coordinating our efforts).Some consumer amendments even foundtheir way into the final bill.From the first joint hearing on the two billsit was obvious that UCITA’s proponentshad the advantage. It was being pushedby the Governor, the leaders of bothhouses of the General Assembly, theMaryland representative to the NationalConference of Commissioners on UniformState Laws, AOL, Microsoft, and a raft ofbusinesses powerful enough to haveexempted themselves from UCITA’s moreodious provisions, such as the banking andentertainment industries. Their testimony insupport of the Act took almost three hours.It was also obvious that there was seriousopposition to UCITA; legislative workinggroups were set up by the Senate andHouse committees in an effort to addresssome of our concerns.As has been reported in a number ofarticles published in AALL Spectrum,one of the main concerns librarians havewith UCITA is its effect on copyright. UCITA redefines computer software andinformation transactions as a licensingtransaction rather than a sale. This meansthat a vendor can wield more control of the subsequent use of the product,including the right to prohibit the transferof computer information. (See UCITAsection 503.) This has a potentially chillingeffect on fair use and the first sale doctrine,not to mention the right to transfermaterials through interlibrary loan, throughmergers, or through a gifts and exchangeprogram. Because competition is so limited in the marketplace for computerinformation products, libraries will be leftwith few rights and very little bargainingpower under UCITA.The library community tried to convey theseconcerns to the Senators and Delegates inthe legislative working groups. We evenproposed several amendments, the last ofwhich read:A term of a non-negotiated contract to which a library, archive, oreducational institution is a party isunenforceable to the extent that itrestricts the ability of the library,archive, or educational institution toengage in archiving, reserve lending,interlibrary lending, classroom use,distance education, or preservationactivities that otherwise are permittedby state or federal law.While this amendment still would require thatwe act to preserve our interests in negotiatedagreements, we felt we that this amendmentwould address most of our concerns.Unfortunately, the legislators disagreed,stating over and over that “copyright will trump UCITA.” What the UCITAproponents failed to understand is thatfederal copyright law does not necessarilypreempt contracts. In fact, the general ruleis that a negotiated contract is not overruledby copyright. In non-negotiated contracts—such as shrink wrap and “click-on” licenses,to which a user has agreed by openingand using the product or by clicking on“ok” when the license agreement isdisplayed on the screen (usually in extra-small type most of which is not viewablefrom the window provided)—the courts have split on the issue. The Senate committee did attempt toappease the library and educationcommittees by adopting an amendmentthat reads:A contract term is unenforceable to the extent that it would vary a statute,rule, regulation, or procedure that maynot be varied by agreement under the federal copyright law, includingprovisions of the copyright law relatedto fair use. Of course, the provision “varied byagreement” renders the remainder of thiscopyrightcornercornerCopyrightcontinued on page 21UCITA proponents mischaracterized our arguments and claimed ouramendment would leave themvulnerable to piracy by libraries and educational institutions.© 2000 Harvey K. Morrell63784 AALL Spectrum.July  7/7/00  8:57 AM  Page 821AALL Spectrum  July 2000Oceananew-shootCopyright Corner continued from page 8amendment useless because nearly everyprovision of the copyright law (with ahandful of exceptions not relevant to ourconcerns) can be varied by agreement. Once the library community’s amendmentwas rejected, we began an e-mail andletter-writing campaign in order to let theother members of the Senate and Houseknow our position. It was at this point that the proponents began tomischaracterize our arguments and claimthat our amendment would leave themvulnerable to piracy by libraries andeducational institutions. The Reed-Elsevier-LEXIS representative even went so far as to claim that our amendment might allowlibrarians to pirate the entire MarylandCode from one of his company’sdatabases! (This statement was made atthe Senate Finance Committee workingsession on March 23, 2000.) This mischaracterization of the library andeducation community’s intentions continuedin the floor debates in both the Senate andthe House. In both houses of the GeneralAssembly, arguments were made thatlibraries and educational institutions werenot concerned with the rights of copyrightholders; that we were interested in givingcomputer information away. Proponentsadded that technological advances havemade copying easier than ever before.In the end, UCITA was passed without anamendment to protect library interests,although Senator Kelley, in her speech in support of UCITA, mentioned that she would be willing to support alibrary/educational institution amendmentin the future if the community could comeup with specific instances where UCITAhas adversely affected our mission. Suggestions for those of you who’ll befighting UCITA in the future:1. Develop a coalition of all the variouslibrary groups in your state as well asother groups opposed to UCITA anddevelop an action plan. This should bedone as early as possible, preferablybefore UCITA is officially introduced.2. Set up a mailing list to keep membersapprised of current developments and tosend action alerts. These action alertsshould have “ready made” form letters, so that members merely have to forwardthem to the appropriate legislator.3. Develop a list of concrete examples ofhow UCITA will adversely affect librariesand institutions. Legislators usually have no grasp of copyright and arguing in theabstract just does not work. You need tocome up with real life examples of adverselicensing terms and how they will affectlibraries under UCITA. 4. If money permits, hire a lobbyist.Lobbyists are familiar with the vagaries of their state’s legislative process and themajor players. Knowing whom to contact,and how, can make a big difference.Harvey K. Morrell (hmorrell@ubmail.ubalt.edu) is Circulation/ReferenceLibrarian at the University of Baltimore Law Library in Baltimore, Maryland.Legislators usually have no grasp ofcopyright and arguing in the abstractjust does not work. You need to come upwith real life examples of adverselicensing terms and how they will affectlibraries under UCITA.63784 AALL Spectrum.July  7/7/00  8:57 AM  Page 21

Copyright Corner: The Adoption of UCITA in Maryland

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Copyright Corner: The Adoption of UCITA in Maryland

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