|The Millennium Issue||Volume 8, Number 1 • January 2000|
OK, here goes.
I’ve reviewed articles by technology and information authors, including
my own. I’ve spotted some trends, and I believe I can state with confidence
that the following trends will continue.
There Will Be More Laws
Although I don’t think legislatures know how much they do to promote full employment for attorneys, I predict they will go on listening to well-heeled constituents who declare, “There oughta be a law!”
In September of 19981 I wrote an article about how the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute were drafting a new Uniform Commercial Code 2B section and the impact that this law could have on libraries, librarians, and other information professionals. Well, the American Law Institute wisely withdrew from sponsoring the draft, but the NCCUSL pushed forward and in July of 1999 passed the Uniform Computer Information Transactions Act (UCITA).
What is a uniform law? It is a proposal for a law that state legislatures can introduce and ultimately pass. The goal of uniform laws is to create a standard so that different states do not go off in different directions, making interstate commerce difficult or even impossible. The battle in this instance does not occur on the federal level — the battle moves to every state in which legislatures consider adopting the proposal. This creates a logistical nightmare for the national library associations’ lobbyists, who have traditionally focused on Congress and only occasionally on individual states. The most recent example of a state-based action for library lobbyists occurred in Texas in the defense of Nolo Press2, charged with unauthorized practice of law for producing self-help law books. This is not a “good thing.”
UCITA is not the only state law proposed that would impact the information world. Several states3 have passed a law to limit damages and/or court congestion in Y2K litigation. On the federal arena, President Clinton has signed the “Y2K Act”4 to allegedly screen out frivolous claims without blocking or unduly burdening legitimate suits. This law affects actions in both state and federal courts.
The federal government will continue to pass laws to protect Internet service providers (ISP). The Telecommunications Act of 19965 is one example, the Online Copyright Infringement Liability Limitation Act6 is another. Together these laws protect Internet service providers from liability for instances of profane, defamatory, wrong, illegal and copyright-protected text loaded or sent by their users.
I predict more fights over filtering of children’s access to the Internet at libraries. Now that’s a bold prediction. The battle between radio talk show host “Dr. Laura” and the American Library Association and its Bill of Rights will continue. To fuel the fire, of course, proposed federal legislation has already appeared.7
Finally, let’s not forget Carol’s favorite subject — copyright. Watch for new laws trying to protect information in databases — even when the information is facts or government information, neither of which is protected by copyright. Also watch for laws such as the “No Electronic Theft Act” (NET),8 which created criminal liability for those copying more than one copyrighted work (software or text or phonograph record) within 180 days whether for profit or not (e.g., to entice other people to infringe by posting other copyrighted works). Software and other creators are lobbying hard for new laws to protect them from people posting their protected work on the Internet for all to download and use.
Two serious bills
stand before Congress right now that have serious implications for libraries
and information professionals.9
Both grapple with ways to end-run copyright and block public access to
such things as the laws (federal, state and municipal codes, and regulations)
that you must obey and the judicial opinions that affect your life. See
the excellent Web sites for the Washington offices of the American Association
of Law Libraries (AALL) and the American Library Association (ALA), as
well as the Digital Future Coalition10
to keep up-to-date on legal issues affecting librarians, information professionals,
and their clients.
Electronic Commerce and the
I predict that e-commerce will really take off. (Another bold prediction.) Just wait until the security systems gain consumer confidence and electronic cash becomes accepted everywhere. I have banked by computer since 1981, and many of my friends have also discovered the ease and efficiency of electronic banking. I can’t remember the last time I went into a bank’s branch office. I think it was 1998 or maybe 1997. I think I needed to pick up traveler’s checks. Who knows?
A key issue in e-commerce in the new millennium will be contract law. I believe that contracts will fall into two sectors: contracts for services and license contracts. If not well written, contracts for services, whether for software development, Web site development, or information, will be the subject of misunderstandings and lawsuits. Here are just some of the things that can go wrong: failure to provide for who owns the copyright in the product or service; failure to provide for responsibility for year 2000 disruptions; failure to enumerate the warranty, testing procedures, and/or service standards, or delivery delays; failure to establish duties respecting notification of problems or to detail the remedies available (refund, repair, replacement, or damages — by day of downtime, by incident, etc.); failure to describe the terms of warranties, and/or disclaimers of warranties, pricing, completion deadlines, and compatibility with existing equipment and/or software.
Contracts for licenses11 (often called “shrink-wrap licenses”), the ones that you can’t read until you open the box and/or install the software, will generate even more questions and problems: Can a license for the use of information or software be imposed upon a user even if the user had no opportunity to read the license and/or disclaimers before purchase? How “obvious” must license terms be — in other words will a small-print sheet stuck in the box suffice? How about that reference to terms and conditions on the “credits” screen? To be bound by the terms, does the purchaser have to “click” agreement with each of the terms or just complete the installation process? Can the provider change the terms of the license without notice to the purchaser/user (for instance, changing the terms with each update)?
Remember, a license can make a violation of contract out of behavior perfectly acceptable under the copyright laws. For instance, a license can require that the user/purchaser return the software or product, or erase the program (or information) from their computer’s hard drive, when they no longer need it. The license may forbid lending, selling, donating, or even giving away an item that you no longer use or need. Remember too, a license is not a sale. There is no “fair use” privilege with a license. Watch this field closely. Watch the consumers lose.
Disclaimers on e-commerce sites are a closely related issue. Try any e-commerce site and actually look at the “user agreement” or “terms and conditions” statements. Watch for disclaimers of liability, explanations of risks, statements on choice of law and venue in the event of litigation. Note the myriad things over which the site has “no control” (quality, safety, legality, truth, or accuracy of the information or product descriptions, the currency or availability or merchantable quality of the product or information, etc.). Beware of the other risks for which you, the users, assume the responsibility or liability.
issues also relate to reference work. Whether you are a reference librarian,
a researcher, or especially if you are an independent information professional,
you will need to develop and constantly enhance your contracts and provide
disclaimers on your final product.
I predict that in the new millennium everything will become more aggravating. Everything.
Among the aggravating things that either won’t go away, or might even get worse, I include the following:
I don’t think many of my pet peeves will be solved or resolved very early in the next millennium, but one can always hope!
“UCC 2B: Proposal Could Dramatically
Impact Libraries and Information Professionals,”Searcher, vol.
6, September 1998, pp. 24+.
2. For a complete rundown of the case, see http://www.nolo.com/texas/index.html (which includes a link to the Texas Library Association’s site).
3. A quick search of Lexis revealed that Alaska, Arizona, Florida and Hawaii (among others) had already passed some type of legislation. It was proposed in Colorado, and the District of Columbia passed a law to limit its own Y2K liability. The search strategy that worked best was: “YEAR 2000” OR Y2K AND (COMPLIAN! OR CAPABLE) AND DAMAGES AND COMPUTER OR SOFTWARE in the “STATES” library’s all codes (“ALLCDE”) file.
4. The Y2K Act, Pub. L. No. 106-37, 106 Pub. L. No. 37, 113 Stat. 185 (JUL. 20, 1999).
5. The Telecommunications Act of 1996, Pub. L. No.104-104; 110 Stat. 56; (1996).
6. The Online Copyright Infringement Liability Limitation Act, Pub. L. No. 105-304; 112 Stat. 2860 (1998).
7. H.R. 2560, the Child Protection Act of 1999.
8. The No Electronic Theft Act, Pub. L. No. 105-147, 111 Stat.2678 (1997).
9. H.R. 1858, the Consumer and Investor Access to Information Act of 1999, as amended by the Subcommittee on Telecommunications, Trade and Consumer Protection, which has the support of the library community. H.R. 354, the Collections of Information Antipiracy Act of 1999, is opposed by the library community. What’s in a name?
10. AALL Washington Office site is http://www.aallnet.org/washington/ and the Digital Future Coalition site is at http://www.dfc.org/. The American Library Association’s Web sites are: http://www.ala.org/washoff/ and http://www.ala.org/oitp/.