The Uniform Computer Information Transactions Act was on the agenda last week at a meeting of the Cyberlaw Advisory Committee for Virginia General Assembly's Joint Commission On Technology & Science. As one of two states that have enacted UCITA as law (Maryland being the other), Virginia needs to decide whether to adopt the new amendments crafted for UCITA last year by NCCUSL, the organization that drafted UCITA. The committee, a number of whose members played a role getting UCITA enacted in the first place, therefore devoted its time to considering the amendments and voting on whether to recommend their adoption to the Assembly.

You may recall that NCCUSL adopted a series of amendments last year in what turned out to be a vain attempt to the American Law Association to approve UCITA. While the amendments came nowhere near fixing the basic problems with UCITA, a few of them were at least improvements by consumer advocates and other UCITA opponents. But in spite of NCCUSL's attempt to gussy up its ugly stepchild, state legislatures still want nothing to do with it. For the third year a row, it appears UCITA will again fail to be enacted or even seriously considered in any states. And a fourth state, Vermont, has joined Iowa, North Carolina and West Virginia in enacting anti-UCITA "bombshelter" legislation. (For more background on UCITA, bombshelters, etc., please visit the AFFECT coalition's website.)

Meanwhile, though, Virginia's version has remained UCITA at its worst, without even the fixes that NCCUSL has admitted the law needs. (Maryland's version, which had to be adapted to existing laws that are more consumer-friendly, is a little less nasty.) So it was expected the Cyberlaw committee would quickly rubberstamp all the amendments. It did approve a number of them, and it will apparently consider a few more at its next meeting in September. But the committee also voted to reject a number of the amendments, including several rather important ones.

One of the amendments that the committee rejected was the one on electronic self help, i.e., the remote disabling of software. Observers of the meeting that I talked to were not clear on what the committee's rationale for this decision was, but it will certainly upset some people, since electronic self help is the single issue that has galvanized the most opposition to UCITA. Personally, though, I'm not sure which of the electronic self help provisions - Virginia's old one or the NCCUSL amendment - I dislike the most.

Another NCCUSL amendment that the Cyberlaw committee rejected though was one that even I thought was an improvement. In part at the urging of some technology companies like Sun Microsystems, NCCUSL adopted an amendment last year on reverse engineering. Prohibition on reverse engineering in a software license agreement could not be used to prevent reverse engineering for purposes of interoperability, the NCCUSL amendment said. Again for reasons we can only guess at, the committee chose to reject that amendment. So we must presume that under Virginia law as it stands, all sneakwrap-based prohibitions against reverse engineering are enforceable.

This is the second piece of bad news about reverse engineering and license agreements in recent weeks, the U.S. Supreme Court's decision not to review the Bowers v. Baystate Technologies decision. (See my column from last year on that case.) The Bowers case was not directly influenced by UCITA, although some of the precedents cited by the original decision were. And in ruling an otherwise legal activity to be forbidden due to a term in a shrinkwrap agreement, it is very much an application of UCITA-like thinking.

I don't want to repeat all my previous arguments about reverse engineering, but let me reiterate one point. Judges and juries (and certain Cyberlaw committees) may not understand it, but reverse engineering is a crucial tool for interoperability, for security, and for competition in the software industry. Bad laws and silly court decisions aren't going to keep the competition from analyzing your products - but they just might change where the competition does it.

Which brings us the real irony of Virginia and UCITA. Virginia originally enacted UCITA in the mistaken belief that it would bring technology jobs to the state. If anything, it's probably cost them jobs, but last week's decision by the Cyberlaw Advisory Committee should make that a certainty. After all, if you have a technology company that you'd like to keep competitive, do you want your engineers based in a state that has virtually outlawed reverse engineering? Perhaps the Cyberlaw committee should consider reversing themselves, not just on reverse engineering but on the whole idea of UCITA.

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