UCITA: Enforceability and Fairness of Negotiated, Shrinkwrap, and Click-through Licenses

Citation

Miller, T.J. (2001), "UCITA: Enforceability and Fairness of Negotiated, Shrinkwrap, and Click-through Licenses", Library Hi Tech News, Vol. 18 No. 2. https://doi.org/10.1108/lhtn.2001.23918bac.002

UCITA: Enforceability and Fairness of Negotiated, Shrinkwrap, and Click-through Licenses

Tamara J. Miller

UCITA: Enforceability and Fairness of Negotiated, Shrinkwrap, and Click-through Licenses

"The difference between selling a work and licensing it is significant. Licensing constitutes a limited transfer of rights to use an item on stated terms and conditions ... To the extent that highly restrictive licensing replaces sales, society may be the loser, especially if the public policy goals embodied in copyright law are omitted from contracts ..." ­ The Digital Dilemma

UCITA, the Uniform Computer Information Transactions Act, is an attempt to update the Uniform Commercial Code for the electronic environment. Rodney Petersen, Policy and Planning, University of Maryland, gave a brief history of the act. A summary of the implications of UCITA for higher education can be found at www.arl.org/info/frn/copy/ucitasum.html

What's Wrong with UCITA?

James G. Neal, Dean of Libraries, Johns Hopkins University, outlined the major concerns of the educational community with UCITA. At the heart of the issue is the fairness of entering into a contract without being able to negotiate any part of that contract. UCITA weakens consumer protections, particularly in the areas of warranties and known defects since liability for defects is waived. Reverse engineering for purposes of research and teaching is allowed under current law, but can be prohibited under UCITA. Electronic self-help provisions would allow the licensor to disable software or deny access to electronic information unilaterally. This provision also allows the vendor to monitor the use of the product and raises serious privacy concerns.

Librarians are primarily concerned with the effect of UCITA on copyright and fair use of electronic information. Does UCITA, a state law, override the fair use provisions of the copyright law? The plain language of UCITA would appear to do so. Licensing, rather than outright purchase of materials, has already resulted in more stringent limitations on use. UCITA limits the ability of the buyer to negotiate license provisions. The law solidifies the technical control of content with its anti-circumvention provisions.

The Maryland Experience

The panel then presented a case study of their efforts to amend UCITA in Maryland. Donald Riley, CIO, University of Maryland, reviewed the state activities that resulted in "2000 Technology Goals", the Governor's agenda to protect and expand Maryland businesses by establishing a framework for the digital economy.

The General Assembly focused on UCITA and the Uniform Electronic Transactions Act (UETA). Among the more unusual proposals was a plan to assign each Maryland citizen an email address at birth. The primary thrust, however, was to develop a commercial law framework that would serve as a national model. The Maryland Information Technology Board and the Attorney General expressed concern about several aspects of UCITA. They recommended hearings to determine its appropriateness to the state. Those hearings were never held as Maryland rushed to be the first to pass an e-commerce law, beating rival Virginia.

Neal, Petersen, and Riley were part of a lobbying effort to amend UCITA to guarantee that non-negotiated licenses could not include provisions that would restrict the fair use rights of libraries, archives, and education institutions under federal copyright law. They undertook this lobbying effort in a tough intellectual property environment. The longstanding balance of rights between copyright owners and those who use copyrighted materials is at risk.

Lobbying the Maryland legislature presented significant challenges. There was not much time to build a coalition and make reasoned arguments. Most legislators were unfamiliar with copyright law. Since the focus of UCITA was e-commerce, the universities and libraries were not seen as central stakeholders. Economic development became an overriding imperative in Maryland. Those who questioned UCITA were accused of impeding progress and prosperity. It was difficult to be heard amid the flood of commercial and industry lobbyists. The professional lobbyists often had longstanding relationships with the leadership of the General Assembly.

State by State

UCITA will be considered separately in each state. Jim Neal encouraged information technology professionals, academic administrators, and librarians to be aware of the legislative agenda in their states. Higher education should build an advocacy network by seeking out others in their state, particularly in industry, who may wish to see UCITA substantially altered. In Maryland, the insurance industry, among others, was an active partner. In Delaware the banking industry had interests that coincided with higher education.

UCITA became law in Maryland on 1 October, 2000, without the amendment sought by the panelists. Virginia passed UCITA but delayed implementation until 2001 pending thorough study. California legislators have decided not to introduce UCITA legislation at this time. Delaware and Maine have tabled the bill until 2001. The Iowa legislature passed an anti-UCITA law that protects its citizens from the effects of UCITA. In Illinois, UCITA was tabled indefinitely. UCITA was passed by the House and Senate in Oklahoma, but will not move to a joint conference committee until an interim study is completed.

UCITA will be the subject of a satellite teleconference on 13 December, 2000. Registration information is on the Association for Research Libraries Web site (www.arl.org/ucita.html).

The Cultural Impact of Enterprise Course Management Systems

Central learning management systems find a place in organizations that depend on the individual intellectual work of scholars and teachers.

Georgetown University is implementing a learning management system (LMS) with an enterprise-wide approach. They hope to move from supporting the efforts of individual faculty who are the pioneers of online teaching to fostering online teaching across the university. To be effective, this will require changes in both business processes and cultural norms.

The broad project goals are to create good-quality online courses, contain the costs of course development, distribute the courses widely, and systematically manage the intellectual capital of the university. The presenters frame the challenge as fostering teaching while managing the process through the central learning management system. Deborah Everhard, Blackboard Inc., and Charles Leonhardt, Georgetown University see the primary cultural tension as balancing "administrative rigor" with "academic freedom."

The discussion focused on three areas: course material development, academic records, and the learning environment.

Course materials management

Many of the existing online classes are Web-based and outside the LMS. A more predictable learning environment would result from a more uniform delivery of online course materials. The factors to be addressed by the university include:

• •

  funding costs of conversion, including the differing abilities of faculty to create online courses;

• •

  defining ownership rights to the course content and managing multiple versions of the same course;

• •

  selecting standards, particularly for metadata with an eye to portability and migration;

• •

  assuring the quality of the course content and accommodating the traditional autonomy of the faculty;

• •

  assessing the need for a central repository or "library" for shared materials.

In developing strategies to deal with these issues, Georgetown has adopted the IMS standards for learning modules. They will implement a system of course version control with identifiable master copies. They favor taking a project management approach that is consistent across the institution, and presumably will result in greater efficiency. It is important to engage the faculty in visioning possible outcomes and reach a shared vision. The aim is to discourage "lone rangers" and offer support for faculty and courses that conform to that shared vision.

Administrative records

The current environment consists of a variety of official and unofficial class records kept by the faculty and multiple administrative units. The implementation of an LMS offers the potential to integrate records, authentication engines, and a variety of administrative systems. The panelists articulated major problems that have emerged, such as:

• •

  privacy, particularly the implications of federal legislation (FERPA);

• •

  security of personal information and access to the class and its records;

• •

  strategies to deal with exceptions like unofficial students and guest lecturers;

• •

  storage and retention of records over time;

• •

  direct submission of grades and provisions for student performance tracking;

• •

  online grade delivery to students while ensuring privacy.

Most of these issues are policy questions and not technical considerations. Procedures and practices need to be in place before wide scale implementation. Institutions should carefully review their legal obligations in handling student records. There is a need to educate users, especially faculty, on what is an "official" record and how it is to be treated. Online grades for quizzes generated by the LMS may seem more official than they actually are, simply because they are delivered electronically. Technically, LMS's are inflexible, but as they mature toward open standards better integration of records across the university will be possible.

Learning Environment

Changing the learning environment poses some of the most difficult challenges for an institution. Historically, the faculty control the course and the classroom. When the LMS becomes the modern classroom, the faculty role must be defined in this new context. The complexity of roles and rights may not fit neatly into the learning management system. Issues that need broad discussion are:

• •

  the purpose of online course materials, particularly the issues of future marketability and shared content between courses;

• •

  the definition of rights and roles to allow for effective management of security and access;

• •

  an articulation of the information needed by faculty, students, and managers to effectively use the LMS.

At Georgetown, they expect to develop different access levels for different purposes. This will require managing user IDs at a much more detailed level than in the past. They feel they will need to make some information in back-end systems directly available to faculty and allow faculty some control of who else has access. They expect to rely heavily on secure socket layers for security.

Reflection

Although the session did not focus on cultural change in the sense that anthropologists and sociologists understand culture, it did clarify the major issues from the point of view of technologists and administrators. The supporting role of libraries and librarians was not mentioned at all. Faculty were sometimes seen as a barrier to LMS implementation. It is clear that there are tensions between the central control allowed by an LMS and distributed faculty responsibility for course content, structure, and form. This tension is illustrated by questions about responsibility for the quality of courses and how an institution should control quality. These are not new issues. They are built into the shared governance structure of educational institutions. It is an open question as to how faculty responsibility for curriculum development and peer review of colleagues will be reflected in the new learning environment.

Digital Rights Management in E-learning: A Case Study

Digital rights management software should help faculty integrate a broad variety of content, especially digital media, into their online courses. Rights management software has evolved from primarily an encryption technology to a tool with a wider range of management functions.

Panelists Steve Griffin of Eduprise, Heidi Ellenberger of Reciprocal, and Ron Legon, University of Baltimore, reviewed the use of Reciprocal, a commercially available product in "Art and Ideas", a fully online class taught by Legon. Focus groups conducted in Spring 2000 identified a number of issues for study. Commercial copyrighted content as well as materials created by the professor needed to be protected. Any payment of royalties needs to conform to university fee policies. At question is identifying the costs to be paid centrally and those to be passed on directly to the student.

The session may have been premature, since data collection is continuing and the full report will not be available until the fall of 2001. The project will attempt to identify the impacts on students as they access materials protected by the rights management system. The participants hope to demonstrate the benefits of protecting content in the online learning environment. The final report should address the technical and policy issues that will need to be considered when implementing digital rights management software.

The underlying protection of content should be invisible to students who are enrolled in the class. The faculty should be able to mix different kinds of content, both under fair use and with permission from commercial and non-commercial sources, in a seamless fashion.

The participants hope that they can create a digital equivalent to the photocopied coursepack. "Arts and Ideas" makes use of musical examples in a collection of 60-90 minutes of selections tailored to the class. The panel reported obtaining permission to use musical recordings at low or no royalty payments if they could prove that they would be delivered only to registered students. The minimizing of downstream copying, beyond class use, is an important element both in good faith efforts to abide by fair use and in successfully getting permission to use commercial content.

Tamara J. Miller is Professor, Planning and Program Development, University of Tennessee Libraries, Knoxville, Tennessee. tamara-miller@utk.edu

Contact information: Tamara J. Miller, Professor, 611 Hodges Library, University of Tennessee, Knoxville, TN 37996-1000. Tel: 865 974 4465 (voice); Fax: 865 974 4259; E-mail: tamara-miller@utk.edu