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Second Letter from American Committee for Interoperable Systems (ACIS) to NCCUSL Opposing UCITA
June 21, 1999
Mr. Gene N. Lebrun
Re: Uniform Computer Information Transactions Act
Dear Mr. Lebrun: I am writing to you in my role as Chairman of the American Committee for Interoperable Systems (ACIS) to comment on the Uniform Computer Information Transactions Act (UCITA). ACIS is a voluntary association of more than 30 corporations and organizations concerned with the future of the computer and communications industry. Members include: Advanced Micro Devices; Amdahl Corporation; Bull HN Information Systems Inc.; NCR Corporation; Seagate Technology Corporation; Storage Technology Corporation; Sun Microsystems, Inc; and 3Com Corporation, among others. ACIS has enjoyed working with the drafting committee on this matter for the past several years, and appreciates the changes which have been made to the draft in response to concerns that its members have raised. However, for the reasons set forth below, it would be better to recast the UCITA draft as a model law than to promulgate it as a uniform law. The drafting process for Uniform Commercial Code Article 2(B), while Herculean in its attempt to accommodate the concerns of all interested parties, was marked by a sharp lack of consensus among many of the stakeholders. While the UCITA process is useful as a way to steer around some of the more difficult hurdles which presented themselves in the UCC2B process, the fundamental issues which gave rise to those hurdles remain embedded in the UCITA draft. With that in mind, it seems more appropriate to recast UCITA as a model law in order to give the states an opportunity to determine for themselves how to resolve these contentious issues. As our economy becomes increasingly information based, UCITA will apply to an ever growing proportion of routine transactions. The states should have the flexibility to allocate rights and responsibilities in this expanding and evolving area as they see fit. Despite our reservations on the promulgation of UCITA as a uniform law, we welcome the changes to the official comments to Section 105, which now make specific reference to the reverse engineering language contained in the Digital Millennium Copyright Act (DMCA). The inclusion of this language, along with the adoption of the motion put forward last year by Commissioner Harvey Perlman, have to a degree moderated our concern that UCITA (and UCC2B before it) would lead to a disruption of important principles of intellectual property law by rendering enforceable non-negotiated, mass-market license terms which prohibit reverse engineering. The enforceability of such terms would be a major impediment to the goals of achieving interoperability and promoting open systems. Nonetheless, we remain disappointed that more specific language on this issue has not been included in the "black letter" of the draft. In conclusion, ACIS recommends that UCITA be recast as a model law rather than promulgated as a uniform statute. Thank you for your consideration of these points. Sincerely,
Peter M. C. Choy
cc: All Commissioners
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