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. Letter from 50 Intellectual Property Law Professors to NCCUSL Opposing UCC 2B

November 17, 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

Gene N. LEBrun
President, NCCUSL
909 St. Joseph St., 9th Floor
Rapid City, SD 57709

Professor Geoffrey Hazard, Jr.
Director, American Law Institute
4025 Chestnut Street
Philadelphia, PA 19104-3099

 

Dear Mr. Ring, Mr. LEBrun and Professor Hazard:

The undersigned are professors of intellectual property law at various academic institutions in the United States. We are writing to urge that you table proposed Article 2B of the Uniform Commercial Code. While we understand the enormous time and effort that have gone into the drafting of this proposed Article, we fear that the project fails to take sufficient account of the principles of intellectual property law. Further, the widely divergent approaches of multiple drafts not only have failed to accommodate intellectual property doctrine, but have led us to conclude that the problem of reconciling Article 2B with intellectual property law is unlikely to be solved.

We have a wide variety of concerns about the current draft. First, we think the scope of the project is fatally flawed because it does not take into account the realities of intellectual property transactions in the modern world. The draft would require courts to distinguish "software patents" (covered) from other sorts of patents (not covered), something intellectual property law has not so far even attempted to do. Similarly, it would require courts to parse complex licensing transactions of patents, trade secrets, trademarks, and associated know-how, applying Article 2B to part (but not all) of the subject matter of the transaction. We don't see a good way to solve this problem, and we worry that forcing state courts to make such distinctions is an invitation to disaster.

Second, we fear that Article 2B will confuse rather than simplify the already uncertain relationship between intellectual property rules and state contract law. Article 2B on several occasions adopts the terminology of intellectual property law, but gives familiar terms new meanings or implications that are at odds with the settled expectations of courts and lawyers. [To take just one example, Article 2B defines "license" in a way that not only includes the sale of a copy of a copyrighted work, but does not distinguish between a "license" of the intellectual property right and a "license" of a particular tangible embodiment of that right.] It seems unreasonable to ask courts to learn an entirely new set of meanings for familiar intellectual property terms, and to apply it along with the different meanings given the same terms in intellectual property law.

Third, the draft itself admits that it "pushes against" certain rules of intellectual property law. We are concerned that principles of intellectual property law that have been carefully worked out over more than two centuries may be undermined by state courts applying a new state law that is in at least some tension with federal law. Both ALI and NCCUSL have attempted to address this concern by altering Article 2B to defer explicitly to federal policy in certain areas. In both cases, however, the actual draft produced by the committee eviscerates these desirable limitations. Even if these provisions were strengthened, we fear that the burden on the courts to resolve the tensions created by Article 2B would be overwhelming.

Finally, we note that there is significant disagreement in the intellectual property bar, the copyright and entertainment industries, and the community of computer professionals about the wisdom of continuing with this project. A number of industry groups with a wide variety of perspectives have already asked that Article 2B be tabled. This raises the spectre of a state statute that is not uniform, but is enacted in a few states, modified in others, and rejected outright in still others. From the perspective of an intellectual property lawyer, this is the worst possible outcome.

Our concerns do not come from a particular industry perspective, or result from a certain ideology. Indeed, while many of the authors of this letter have such concerns, we do not necessarily agree on specific changes. But we are agreed that the best course of action is to table Article 2B for the foreseeable future.

Very truly yours,

 

Prof. Mark A. Lemley
University of Texas School of Law

On behalf of:

Prof. John Allison
School of Management Science
University of Texas at Austin

Prof. Keith Aoki
University of Oregon School of Law

Prof. Stephen Barnett
Boalt Hall School of Law
University of California at Berkeley

Prof. Ann Bartow
University of Dayton School of Law

Prof. James Boyle
Washington College of Law
American University

Prof. Dan Burk
Seton Hall University School of Law

Prof. Art Campbell
Case Western Reserve University
School of Law

Prof. Richard Chused
Georgetown University Law Center

Prof. Robert Clinton
University of Iowa College of Law

Prof. Julie Cohen
University of Pittsburgh School of Law

Prof. Thomas Cotter
University of Florida College of Law

Prof. Kenneth D. Crews
Indiana University School of Law- Indianapolis

Prof. Robert Denicola
University of Nebraska College of Law

Prof. Rochelle Cooper Dreyfuss
New York University School of Law

Prof. Tom Field
Franklin Pierce Law Center

Prof. William Fisher III
Harvard Law School

Prof. Michael Froomkin
University of Miami School of Law

Prof. Laura N. Gasaway
University of North Carolina School of Law

Prof. Llew Gibbons
University of Toledo College of Law

Prof. Sheldon W. Halpern
Ohio State University College of Law

Prof. Marci Hamilton
Benjamin Cardozo School of Law
Yeshiva University

Prof. Paul Heald
Univ. of Georgia School of Law

Prof. Marcus Hurn
Franklin Pierce Law Center

Prof. Mary Brandt Jensen
University of Mississippi School of Law

Prof. Craig Jepson
Franklin Pierce Law Center

Prof. Dennis Karjala
Arizona State College of Law

Prof. John Kidwell
University of Wisconsin School of Law

Prof. Robert A. Kreiss
University of Dayton School of Law

Prof. David Lange
Duke University Law School

Prof. Marshall Leaffer
University of Toledo School of Law

Prof. Mark A. Lemley
University of Texas School of Law

Prof. Lawrence Lessig
Harvard Law School

Prof. Jessica Litman
Wayne State University School of Law

Prof. Glynn S. Lunney, Jr.
Tulane Law School

Prof. Michael Madison
University of Pittsburgh School of Law

Prof. Peter Menell
Boalt Hall School of Law
University of California at Berkeley

Prof. Robert Merges
Boalt Hall School of Law
University of California at Berkeley

Prof. Robert L. Oakley
Georgetown University Law Center

Prof. Ruth Gana Okediji
University of Oklahoma School of Law

Prof. David Post
Temple Law School

Prof. Susan Poulter
University of Utah College of Law

Prof. Margaret Jane Radin
Stanford Law School

Prof. J.H. Reichman
Vanderbilt Law School

Prof. Joel Reidenberg
Fordham University School of Law

Prof. Pamela Samuelson
Boalt Hall School of Law
University of California at Berkeley

Prof. Roger e. Schechter
National Law Center
George Washington University

Prof. Peter P. Swire
Ohio State University College of Law

Prof. Sarah K. Wiant
Washinton & Lee University Law School

Prof. Jane Kaufman Winn
Southern Methodist University Law School

Prof. Alfred Yen
Boston College Law School


UCITA Pages On
James S. Huggins' Refrigerator Door

UCITA: Uniform Computer Information Transactions Act 
(This is the primary UCITA page.)
 
Home Box Office
Memo Spring 1998 (?)
 
45 Professors of Contracts and Commercial Law Letter 16.Jul.1999
 
Motion Picture Association of America Letter 10.Sep.1998
 
50 Intellectual Property Law Professors Letter 17.Nov.1998
 
Motion Picture Association of America Letter 09.Nov.1998
 
American Bar Association Letter 10.Jun.1999 
 
Motion Picture Association of America Letter 07.Dec.1998
 
American Committee on Interoperable Systems Letter 13.Jul.1998
 
Motion Picture Association of America Letter 10.May.1999
 
American Committee on Interoperable Systems Letter 07.Oct.1998
 
Movie, Publishing and Broadcasting Industry Letter 10.Sep.1999
 
American Committee on Interoperable Systems Letter 21.Jun.1999
 
National Music Publishers Association Letter 21.Jan.1999
 
American Committee on Interoperable Systems email 15.Jul.1999
 

Opposition Summary 
 
American Law Institute Letter 26.Mar.1999
 
 
Pamela Samuelson Letter 09.Jul.1999
 
Association of the Bar of the City of New York Report 21.Jun.1999
 
Principal Financial - Introduction to UCITA
 
 
Attorneys General Letter 23.Jul.1999
 
Principal Financial - Summary of UCITA
 
 
Attorneys General Letter 28.Jul.1999
 
Recording Industry Association of America Letter 09.Oct.1998
 

Attorneys General Letter 23.Jul.1999 
 
 
Sample Letter 


Caterpillar Statement 1999
 
 
Security Mutual Insurance Letter 26.May.1999
 

Consumer Groups Letter 10.Nov.1998 
 
Society for Information Management Letter 23.Mar.1998
 
 
Consumers Union Letter 08.Oct.1998
 
 
Society for Information Management Letter 08.Oct.1998
 
 
Consumers Union Letter 21.Jun.1999
 
Software engineering Institute Letter 01.Jun.1999
 
Digital Future Coalition Letter 23.Jun.1999
 
 
swtest-discuss Letter 20.Nov.1998
 

Digital Future Coalition Page Fall 1999
 


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