From jband@mofo.com Tue Dec 17 12:01:33 1996
The National Conference of Commissioners on Uniform State
Laws is in the process of drafting a new article for the
Uniform Commercial Code, which forms the basis of contract
law in most states. Draft Section 2B-308 addresses mass
market licenses, and would provide that in most instances
shrink-wrap or click-on licenses would be enforceable.
Under current law, such unilaterally imposed, take it or
leave it licenses are generally viewed by courts as
unenforceable contracts of adhesion.
Making shrink-wrap and click-on licenses enforceable would
severely harm consumer welfare, particularly in the
copyright area. The license written by a software
developer, for example, could state that by removing the
software's shrink-wrap packaging, a user agrees to waive all
fair use privileges in the software . Likewise, the license
written by a web page designer could provide that by
clicking on the next page icon, the user agrees to refrain
from copying any facts appearing in the web page. Because
in the digital age most information will be available only
on-line or via CD-ROM, the enforcement of shrink-wrap or
click-on licenses will permit content providers to underact
dramatically the limitations contained in the Copyright Act.
Additionally, new Article 2B-308 could apply to analogue as
well as digital works. Thus, a telephone company could
distribute White Pages with a license printed on the front
cover stating that by opening the phone book, a user agrees
not to copy any of the listings contained therein.
Arguably, the enforcement of a shrink-wrap or click-on
license which conflicts with the Copyright Act is preempted
either by Section 301 of the Copyright Act or the U.S.
Constitution. However, because preemption law is far from
clear, one cannot rely on preemption law as it currently
stands to protect users and the copyright law from
encroachment by content providers.
Fortunately, there remains time to influence the UCC
revision process. The Article 2B drafting committee is
still at work, and will not present its final draft to the
Commission until the summer of 1997. Accordingly, concerns
with Section 2B-308 need to be directed to the entire
drafting committee, as well as the Commission itself, as
soon as possible.
Date: Tue, 05 Nov 1996 11:50:09 -0800
From: "Band, Jonathan"
To: "'smtp:tpaglia@tap.org'"
The Threat Posed By the Proposed New Article 2B
of the Uniform Commercial Code