Communications of the ACM
Communications of the ACM
Viewpoint: Why We Must Fight -UCITA
The Uniform Computer Information Transactions Act (UCITA) is a proposed law, designed by the proprietary software developers who are now asking all 50 states of the U.S. to adopt it. If UCITA is adopted, it will threaten the free software community1 with disaster.
We generally believe big companies ought to be held to a strict standard of liability to their customers because they can afford it and because it will keep them honest. On the other hand, individuals, amateurs, and good samaritans should be treated more favorably.
UCITA does exactly the opposite. It makes individuals, amateurs, and good samaritans liable, but not big companies.
You see, UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default. Sophisticated software companies that make proprietary software will use shrink-wrap licenses to avoid liability entirely. But amateurs, and self-employed contractors who develop software for others, will often be shafted because they didn't know about this problem. And we free-software developers won't have any reliable way to avoid the problem.
What can we do about this? We could try to change our licenses to avoid it. But since we don't use shrink-wrap licenses, we cannot override the UCITA default. Perhaps we can prohibit distribution in the states that adopt UCITA. That might solve the problemfor the software we release in the future. But we can't do this retroactively for existing software. Those versions are already available, people are already licensed to distribute them in these states, and when they do so, under UCITA, they would make us liable. We are powerless to change this situation by changing our licenses now; we will have to make complex legal arguments that may or may not work.
UCITA has another indirect consequence that would hamstring free software development in the long termit gives proprietary software developers the power to prohibit reverse engineering. This would make it easy for them to establish secret file formats and protocols, and there would be no lawful way for us to figure out.
That could be a disastrous obstacle for development of free software that serves the practical needs of the users because communicating with users of non-free software is one of those needs. Many users today feel they must run Windows in order to read and write files in Word format. Microsoft's "Halloween documents" announced a plan to use secret formats and protocols as a weapon to obstruct the development of the GNU/Linux system.2
This kind of restriction is now being used in Norway to prosecute 16-year-old Jon Johansen, who figured out the format of DVDs to make it possible to write free software to play them on free operating systems. (The Electronic Frontier Foundation is helping with his defense; see www.eff.org for further information.)
Some friends of free software have argued that UCITA would benefit our community by making non-free software intolerably restrictive, and thus driving users to us. Realistically speaking, this is unlikely, because it assumes that proprietary software developers will act against their own interests. They may be greedy and ruthless, but they are not stupid.
Proprietary software developers intend to use the additional power UCITA would give them to increase their profits. Rather than using this power at full throttle all the time, they will make an effort to find the most profitable way to use it. Those applications of UCITA power that make users stop buying will be abandoned; those that most users tolerate will become the norm. UCITA will not help us.
UCITA does not apply only to software. It applies to most kinds of computer-readable information. Even if you use only free software, you are likely to read articles on your computer and access databases. UCITA will allow the publishers to impose the most outrageous restrictions on you. They could change the license retroactively at any time, and force you to delete the material if you don't accept the change. They could even prohibit you from describing what you see as flaws in the material.
This is too outrageous an injustice to wish on anyone, even if it would indirectly benefit a good cause. As ethical beings, we must not favor the infliction of hardship and injustice on others on the grounds that it will drive them to join our cause. We must not be Macchiavellian. The point of free software is concern for each other.
Our only smart plan, our only ethical plan, is to defeat UCITA!
Footnotes
For more UCITA information, see www.4cite.org and www.badsoftware.com. InfoWorld is also organizing an anti-UCITA effort, see archive.infoworld.com/cgi-bin/displayStory.pl?/features/990531ucita_home.htm.
Volunteers are needed. To find out about effective ways to join the cause, contact Skip Lockwood at [email protected]. Readers can also talk to their legislators, pointing out that consumers will have good reason to refuse to do business with e-commerce sites located in states that pass the Act. Another suggestion is to make CIOs of local companies aware of the problem-early.
R.S.
1Since 1998, another group has been using the term "open source" to describe a slightly broader category of software. The Free Software Movement and the Open Source Movement have very different philosophies, much as the Democratic and Republican parties once did. The Free Software Movement cites both practical benefits and social/political/ethical reasons in favor of free software; the Open Source Movement cites the practical benefits. See www.gnu.org/philosophy/free-software-for-freedom.html for more explanation.
2The system is often called "Linux," but that is incorrect. Linux is, in fact, the kernel; one major component of the system (see www.gnu.org/gnu/linux-and-gnu.html).
© 2000 Richard Stallman. Verbatim copying, distribution, and display of the entire article are permitted in any medium provided this notice is preserved.
The Digital Library is published by the Association for Computing Machinery. Copyright © 2000 ACM, Inc.
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