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Letter from 50 Intellectual Property Law Professors to NCCUSL Opposing UCC 2B
November 17, 1998
Carlyle C. Ring, Jr. Esq. Gene N. LeBrun Professor Geoffrey Hazard, Jr.
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 On behalf of: Prof. John Allison Prof. Keith Aoki Prof. Stephen Barnett Prof. Ann Bartow Prof. James Boyle Prof. Dan Burk Prof. Art Campbell Prof. Richard Chused Prof. Robert Clinton Prof. Julie Cohen Prof. Thomas Cotter Prof. Kenneth D. Crews Prof. Robert Denicola Prof. Rochelle Cooper Dreyfuss Prof. Tom Field Prof. William Fisher III Prof. Michael Froomkin Prof. Laura N. Gasaway Prof. Llew Gibbons Prof. Sheldon W. Halpern Prof. Marci Hamilton Prof. Paul Heald Prof. Marcus Hurn Prof. Mary Brandt Jensen Prof. Craig Jepson Prof. Dennis Karjala Prof. John Kidwell Prof. Robert A. Kreiss Prof. David Lange Prof. Marshall Leaffer Prof. Mark A. Lemley Prof. Lawrence Lessig Prof. Jessica Litman Prof. Glynn S. Lunney, Jr. Prof. Michael Madison Prof. Peter Menell Prof. Robert Merges Prof. Robert L. Oakley Prof. Ruth Gana Okediji Prof. David Post Prof. Susan Poulter Prof. Margaret Jane Radin Prof. J.H. Reichman Prof. Joel Reidenberg Prof. Pamela Samuelson Prof. Roger E. Schechter Prof. Peter P. Swire Prof. Sarah K. Wiant Prof. Jane Kaufman Winn Prof. Alfred Yen
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