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Abstract

For those within the information technology (IT) industry, the phrase “open source” has been as prominent at water cooler and boardroom discussions over the last several years as the phrase “out source.” Open source is at once a software development model, a business model, a social movement, and a philosophy that has recently garnered attention from outside of the IT sphere. As such, the topic has become increasingly fertile ground for academic scholarship from several disciplines. Economists, legal academics and practitioners, computer engineers, and social commentators have offered their varying perspectives on open source software. Whether or not this attention is warranted, and whether or not this is truly “an idea whose time has finally come,” remains unclear. The National Conference of Commissioners on Uniform State Laws (NCCUSL) recently proposed the Uniform Computer Information Transactions Act (UCITA) for adoption by all the states. At present, only two states have adopted UCITA and the prevailing logic suggests that further adoption will be an uphill struggle. In large part, UCITA was controversial because it was perceived as overly protective of large commercial computer software developers–most notably, Microsoft. A diverse and energetic collection of interests, aligned against UCITA, has succeeded thus far in derailing its progress. Although the argument that Microsoft is hampered by a lack of uniformity and certainty in the law is not likely to engender a great deal of sympathy, that same argument in the context of open source software might be more convincing. In this Comment, I argue that the open source movement necessitates a rethinking of UCITA, or at least a UCITA-like uniform code to govern software licensing transactions. If UCITA benefits the open source movement, then former opponents may be willing to take another look at the statute. For a number of reasons, a rethinking of UCITA, in light of the open source movement as well as some important amendments to UCITA itself, leads to the conclusion that UCITA should now be adopted by the states.

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