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[RRE]UCC 2B
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Date: Tue, 6 Oct 1998 14:19:34 -0400
>From: Lauren Gelman
October 7, 1998
Carlyle C. Ring, Jr. Esq. Chairman, NCCUSL Article 2B Drafting Committee Ober, Kaler, Grimes & Shriver 1401 H Street NW - Fifth Floor Washington, DC 20005
Professor Geoffrey Hazard, Jr. Director, American Law Institute 4025 Chestnut Street Philadelphia, PA 19104-3099
Dear Mr. Ring and Professor Hazard:
On behalf of the USACM Public Policy Committee and the 70,000 US computing professionals who are members of the Association of Computing Machinery (ACM), we are writing to urge that you table the commercial law project known as proposed Article 2B of the Uniform Commercial Code. We know that a good deal of work has been invested in this project and appreciate that a decision to table a project of this magnitude is a difficult one. However, we have concluded that within the constraints of the present process, it is highly unlikely that the myriad concerns raised from many industry sectors can be satisfactorily resolved by a variant on the current draft. While we obviously cannot speak for other industries, we can speak to some negative effects we perceive as likely to flow from adoption of Article 2B for the computing industry and can express our agreement with statements made by some other groups having reservations about Article 2B.
We agree, for example, with the Motion Picture Association of America and other major copyright industry groups which have asserted that a single commercial law to govern all transactions in, or licenses of, information is infeasible. You should resist the temptation to respond to concerns expressed by these groups by excluding the information that they license from the scope of Article 2B, as the list of exceptions has grown so extensive that it calls into question the idea of having a 'unified field theory' of information licensing. Even reducing the scope of the draft to computer software and online database transactions will not adequately resolve the serious problems that Article 2B raises for the computing field.
Among our greatest concerns about proposed Article 2B is its potential impact on legitimate acts of reverse engineering of computer systems, including software, that are widely practiced, promote innovation and healthy competition, and that are legal under traditional principles of intellectual property law. Article 2B does not, of course, outlaw reverse engineering, but it would contribute to legal uncertainty about reverse engineering by enabling an argument that shrinkwrap license agreements barring reverse engineering might be enforceable. We share concerns of other groups that Article 2B will promote uncertainty about contractual overrides of 'fair uses' of copyrighted digital information products more generally. We are also concerned about the growing use of "no disclosure of flaws" and other anti-criticism clauses in licenses for software and other digital information products which can impede the free flow of information within the technical community. While we believe that the 'Perlman motion' passed in July at the annual meeting of the National Conference of Commissioners on Uniform State Laws would, if properly implemented in Article 2B, address this cluster of concerns, we think that there are deeper problems with Article 2B. The ease with which contracts can be formed under Article 2B in conjunction with its warranty provisions, for example, may lead to sharp practices by licensors and lower standards of software product quality.
For these and other reasons, we have significant doubts that an appropriate balancing of interests in Article 2B can be achieved within the constraints of the current process. We consequently respectfully urge that the Article 2B project be tabled.
Sincerely, ```
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