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Home  A Complicated Law
A Complicated Law
UCITA is a complicated law, difficult to read and understand. In the first place, it is long. The printed version including supplementary comments that attempt to explain the actual words in the proposed law is 196 pages! In the second place, it is written as an amendment to Article 2 of the Uniform Commercial Code. Amendments can be difficult to read out of context of the law they are intended to modify, and Article 2 itself is no piece of cake, having had many years to evolve and expand.
For those of you so inclined to take a look at it, the official version of UCITA can be found at the NCCUSL (you remember NCCUSL!) web site at the University of Pennsylvania web site. (The site seems to discourage deep linking, so go to the following address and look for the Uniform Computer Information Transactions Act.) A summary of UCITA can be found on the NCCUSL web site. We encourage you to take a look at this summary - although with a grain of salt. It is not an objective perspective, but intended to convince state legislators and others of the brilliance of UCITA. So, some of its assertions are in dispute. Nevertheless, someone interested in the Act needs to know what its drafters say about it.
When you look at the current version of UCITA, the first thing you may notice, aside from its bulk, is that some text is printed in boldface type, some in normal. The bold (or, in the jargon of the trade, "black letter") portion is the actual text of the proposed law. The lighter face text is an official running commentary on what the black-letter text is intended to mean. (Be alert, though, because for some reason this pattern can be reversed in parts of versions that are downloaded from the site and printed.)
The important point is that both legal text and commentary are folded together in the proposed law, and it is important to keep the distinction between the two firmly in mind. The commentary serves two functions. First, it explains to state officials considering implementing UCITA in their states the meaning and intent of the wording of the law. Secondly, if UCITA is enacted, the commentary presumably offers guidance to courts on interpreting it.
As we will see in future messages, this distinction has become important in negotiations over UCITA. Drafters have occasionally tried to accommodate criticisms of UCITA by changing the commentary but not the text of the law itself. For the most part, critics insist that unless changes are in the black letter of the law, they are meaningless. Courts are not obliged to follow commentary and often don’t. This is especially true when the plain meaning of the text of the law appears to be at odds with the commentary. In that case, courts are supposed to favor the plain meaning of the law over the commentary.
Now, suppose a critic like ALA objects to something that appears in the black letter of UCITA, asserting that its plain meaning is contrary to the interests of libraries. Suppose further that, in response, drafters make a change, not to the law, but to the commentary that says in effect, "We don’t mean it that way." This almost certainly sets up a conflict between the plain language of the law and the commentary, and ALA should be (and is) skeptical about the force of such a change. We will come to some examples of just such cases in later lessons.
Drafters respond that, at this stage of the process, it is more complicated and difficult to change the black letter law than to modify commentary. ALA’s response is that we were always prepared to work with the drafters during the early process to see that our concerns were met, and, in fact, expressed repeatedly the same concerns that we are expressing now. We did not come to these concerns after the fact. If the final, difficult-to-change, language is still defective, that is a problem the NCCUSL drafters need to deal with.
In the next few messages we will be walking through specific parts of UCITA, section by section, exploring its implications for libraries and other groups.
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