Why We Must Fight UCITA

UCITA is a proposed law, designed by the proprietary software developers, who are now asking all 50 states of the US to adopt it. If UCITA is adopted, it will threaten the free software community (1) with disaster. To understand why, please read on.

We generally believe that 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 be 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 could 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 problem--for the software we release in the future. But we can't do this retroactively for software we have already released. 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 term--it gives proprietary software developers the power to prohibit reverse engineering. This would make it easy for them to establish secret file formats and protocols, which there would be no lawful way for us to figure out.

That could be a disastrous obstacle for development of free software that can serve users' practical needs, because communicating with users of non-free software is one of those needs. Many users today feel that they must run Windows, simply so they can 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).

Precisely 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 http://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 any sort of computer-readable information. Even if you use only free software, you are likely to read articles on your computer, and access data bases. 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 Machiavellian. The point of free software is concern for each other.

If you want to help the fight against UCITA, by meeting with state legislators in your state, send mail to Skip Lockwood < dfc@dfc.org >. He can tell you how to contribute effectively.

Volunteers are needed most urgently in Virginia and Maryland, but California and Oklahoma are coming soon. There will probably be a battle in every state sooner or later.

(1) Other people have been using the term "open source" to describe a similar category of software. I use the term "free software" to show that the Free Software Movement stll exists--that the Open Source Movement has not replaced or absorbed us.

If you value your freedom as well as your convenience, I suggest you use the term "free software", not "open source", to describe your own work, so as to stand up clearly for your values.

If you value accuracy, please use the term "free software", not "open source", to describe the work of the Free Software Movement. The GNU operating system, its GNU/Linux variant, the many GNU software packages, and the GNU GPL, are all primarily the work of the Free Software Movement. The supporters of the Open Source Movement have the right to promote their views, but they should not do so on the basis of our achievements.

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Why We Must Fight UCITA

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