educational

UCITA and the End of Freedom of Speech

A recent article at XBiz entitled "Boycott Microsoft" that dealt with the author's disdain for Windows XP's End User Licensing Agreement (EULA) provided a forum that re-ignited the often passionate (and often irrational) chorus of debate streaming from both sides of the Microsoft camp. On one side are those that consider MS to be the work of the Anti-Christ, while on the other side, are those who find their tools to be the best solution to their needs.

While this is all well and entertaining, and a battle that has been waged many times before, I'd like to go off on a bit of a tangent today, and tell you about a piece of legislation that would take away your current right to publicly criticize Microsoft, or any other software vendor for that matter, - as well as dramatically curtail your rights and expectations regarding informational, educational, and entertainment media technologies.

The Uniform Computer Information Transactions Act (UCITA), is an evolving contract law statute billed as a "cyberspace commercial statute," and designed to foster a uniform, commercial contract law for products like computer software, data and databases, multimedia productions, and nearly all 'online' information.

Covering modern software contracts generally known as "shrink-wrap licenses," UCITA is an outgrowth of several previous proposals, including the UCC, or The Uniform Commercial Code, which is a product of the American Law Institute and the National Conference of Commissioners on Uniform State Laws (NCCUSL).

According to the NCCUSL Web site, "The National Conference of Commissioners on Uniform State Laws (NCCUSL) is [an] organization: comprised of more than 300 lawyers, judges and law professors, appointed by the states as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands, to draft proposals for uniform and model laws on subjects where uniformity is desirable and practicable, and work toward their enactment in legislatures."1

While on its surface, almost any proposed statute that provides a degree of legislative and judicial uniformity (especially in today's 'borderless' economy) seems a beneficial development for both the operators of those businesses affected by the statutes, as well as for the consumer's of their products, such is unfortunately not always the case, and indeed, a widespread opposition to the UCITA and other similar proposals does exist.

According to the Computer Professionals for Social Responsibility, UCITA opponents including 26 State Attorneys General (Arizona, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Maryland, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Tennessee, Vermont, Washington, West Virginia, and Wisconsin), the Association for Computing Machinery, the Consumers Union, the Society for Information Management, the American Libraries Association, and Americans for Fair Electronic Commerce Transactions (AFFECT), all oppose the statute on the basis that it "gives software manufacturers and information services an unfair advantage and leaves consumers with very little recourse when they find themselves with bad software."

This opposition is due to the facts that UCITA allows software publishers to change the terms of the contract [EULA] after purchase, allows restrictions that would prohibit users from criticizing or publicly commenting on software they purchased, allows software and information products to contain "back door" entrances, potentially making users' systems vulnerable to infiltration by unauthorized hackers, and allows software publishers to sell their products "as is" and then to disclaim any liability for product shortcomings.2 This will prevent critical reviews of software from appearing in newspapers or magazines making it harder for consumers to find out if software works correctly before they buy [it].

For further, extensive information on UCITA's negative aspects for consumers, and the degraded protection against poorly designed software that it offers, read Proposed Uniform Computer Information Transactions Act (UCITA):Objections From The Consumer Perspective written by Jean Braucher, and Roger Henderson, Professor of Law, University of Arizona.

For the short course, here's "Five Reasons Consumers Oppose UCITA," by AFFECT3

1) UCITA allows software publishers to sell software "as is"; as used cars are sold in some places, meaning there is no warranty that it works right or that you can get your money back if it does not.

2) Many licenses require consumers to get notices from a software publisher or on-line service. Those notices may change the terms of the software or access license. UCITA allows the notice to be "received" by a consumer if the notice is only posted on a Web site, or by e-mail with no guarantee that it was ever read or even received.

3) If the consumer wants to sue over bad software or over a bad on-line service, UCITA allows the software publisher or Internet service to restrict legal action to a specific jurisdiction -- a particular state, or county -- and in some cases different countries.

4) UCITA allows the consumer to be trapped into agreeing to all of this after the consumer buys the software or on line service and before the user can even load the software to determine if it's what he or she wants or if the software works. Under UCITA these provisions may be placed in the boilerplate fine "print" that the consumer sees for the first time only after the consumer buys the software and takes it home (or downloads it), unwraps the box, puts the disk in the computer and starts loading the software. It is only then that the consumer will be given the opportunity to understand the rules and contract provisions that the courts will enforce.

5) UCITA allows the software license to say that the software cannot be reviewed by a magazine or newspaper without the software publisher's permission unless and until the courts find such a provision to be unenforceable! Even then UCITA allows the provision to remain in the contract! This will prevent critical reviews of software from appearing in newspapers or magazines making it harder for consumers to find out if software works correctly before they buy the software.

Regardless of the final disposition of this statute, it provides an indication of the thinking inspired by well-connected lobbyists whose patrons wish to see an end to all open, public criticism of their product's shortcomings, as well as their business practices. So go say what you want about Microsoft - but do it quickly, because tomorrow you may not have the chance! In the meantime, I'll go back to work on my trusty Windows XP powered laptop: ~ Stephen

1 https://www.nccusl.org/nccusl/default.asp
2 https://www.cpsr.org/program/UCITA/ucita-fact.html
3 https://affect.ucita.com/what_reasons.html

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

opinion

WIA Profile: Lainie Speiser

With her fiery red hair, thick-framed glasses and a laugh that practically hugs you, Lainie Speiser is impossible to miss. Having repped some of adult’s biggest stars during her 30-plus years in the business, the veteran publicist is also a treasure trove of tales dating back to the days when print was king and social media not even a glimmer in the industry’s eye.

Women in Adult ·
opinion

Fighting Back Against AI-Fueled Fake Takedown Notices

The digital landscape is increasingly being shaped by artificial intelligence, and while AI offers immense potential, it’s also being weaponized. One disturbing trend that directly impacts adult businesses is AI-powered “DMCA takedown services” generating a flood of fraudulent Digital Millennium Copyright Act (DMCA) notices.

Corey D. Silverstein ·
opinion

Building Seamless Checkout Flows for High-Risk Merchants

For high-risk merchants such as adult businesses, crypto payments are no longer just a backup plan — they’re fast becoming a first choice. More and more businesses are embracing Bitcoin and other digital currencies for consumer transactions.

Jonathan Corona ·
opinion

What the New SCOTUS Ruling Means for AV Laws and Free Speech

On June 27, 2025, the United States Supreme Court handed down its landmark decision in Free Speech Coalition v. Paxton, upholding Texas’ age verification law in the face of a constitutional challenge and setting a new precedent that bolsters similar laws around the country.

Lawrence G. Walters ·
opinion

What You Need to Know Before Relocating Your Adult Business Abroad

Over the last several months, a noticeable trend has emerged: several of our U.S.-based merchants have decided to “pick up shop” and relocate to European countries. On the surface, this sounds idyllic. I imagine some of my favorite clients sipping coffee or wine at sidewalk cafés, embracing a slower pace of life.

Cathy Beardsley ·
profile

WIA Profile: Salima

When Salima first entered the adult space in her mid-20s, becoming a power player wasn’t even on her radar. She was simply looking to learn. Over the years, however, her instinct for strategy, trust in her teams and commitment to creator-first innovation led her from the trade show floor to the executive suite.

Women in Adult ·
opinion

How the Interstate Obscenity Definition Act Could Impact Adult Businesses

Congress is considering a bill that would change the well-settled definition of obscenity and create extensive new risks for the adult industry. The Interstate Obscenity Definition Act, introduced by Sen. Mike Lee, makes a mockery of the First Amendment and should be roundly rejected.

Lawrence G. Walters ·
opinion

What US Sites Need to Know About UK's Online Safety Act

In a high-risk space like the adult industry, overlooking or ignoring ever-changing rules and regulations can cost you dearly. In the United Kingdom, significant change has now arrived in the form of the Online Safety Act — and failure to comply with its requirements could cost merchants millions of dollars in fines.

Cathy Beardsley ·
opinion

Understanding the MATCH List and How to Avoid Getting Blacklisted

Business is booming, sales are steady and your customer base is growing. Everything seems to be running smoothly — until suddenly, Stripe pulls the plug. With one cold, automated email, your payment processing is shut down. No warning, no explanation.

Jonathan Corona ·
profile

WIA Profile: Leah Koons

If you’ve been to an industry event lately, odds are you’ve heard Leah Koons even before you’ve seen her. As Fansly’s director of marketing, Koons helps steer one of the fastest-growing creator platforms on the web.

Women in Adult ·
Show More