James S. Huggins' Refrigerator Door: Click here to go to my Home Page. ucita, uniform computer information transactions act, 45 professors of contracts and commercial law, ucita, uniform computer information transactions act, 45 professors of contracts and commercial law, qwerty
. Letter from 45 Professors of Contracts and Commercial Law to NCCUSL Objecting to UCC 2B

July 16, 1999

 

President Gene Lebrun and Other Commissioners
National Conference of Commissioners on Uniform State Laws
211 e. Ontario St., Suite 1300
Chicago, IL 60611

 

Dear President Lebrun and Other Commissioners:

           We understand that the Conference is scheduled to vote this month on final approval of the Uniform Computer Information Transactions Act (UCITA). This letter offers the perspective of 43 professors of contracts and commercial law. Our view is that UCITA's contracting rules give software manufacturers the power to impose form terms without meaningful assent by purchasers, to the disadvantage of business buyers as well as consumers.

           The aim of providing uniform rules for software contracts and other contracts involving copies of digital material and on-line services could be achieved by a much more limited project, providing a few specialized default rules for these transactions and otherwise using the contract rules of Revised Article 2. This would amount to the "Hub and Spoke" approach considered earlier in this project but prematurely rejected.

           UCITA is out of step with modern commercial contract law, which recognizes that many deals are made informally because of the fast pace of commerce and the high cost of customizing legal terms through negotiation and drafting. "Default rules," a balanced set of terms supplied by law and applicable unless the parties take the trouble to agree otherwise, are a good way to deal with this reality. UCC Article 2 uses this approach. Revised Article 2 strengthens it by clarifying that express agreement is needed for standard form terms to supplant default rules in deals made by informal conduct, such as the making and filling of an order. See Revised UCC Section 2-207(b)(3).

           UCITA uses a very different approach, making it very easy for a vendor to escape default rules without meaningful assent by the other party. Although UCITA Section 112 defining "manifesting assent" is unclear, judging from the Reporter's Notes, the intent seems to be that a business organization's employee who opened a shrinkwrap package or clicked through terms while installing software would "manifest assent" to the vendor's terms. See Reporter's Note 5 (Assent by Conduct) and Note 10 (Authority to Act) to Section 112. UCITA thus would make shrinkwrap and clickwrap terms enforceable unless the purchaser could afford to police incoming deliveries for undesirable terms. Even if a purchaser negotiated terms in advance of delivery, it would have to be concerned that those terms might be changed by shrinkwrap or clickwrap terms that came with the product.

           In addition to informal order and delivery, another common type of informality in commercial contracting occurs when parties orally agree to terms. Revised Article 2 recognizes the enforceability of non-standard terms to which the parties have agreed. Section 2-207(b)(2). Our respected colleague Joseph Perillo has recently written to you concerning the incompatibility of UCITA Section 307(g) with oral agreement to terms. This provision requires an authenticated record or a manifestation of assent to a record in order for parties to deviate from certain default rules which protect software manufacturers. For example, even if the parties orally agree that the software vendor will provide new versions of a program to a customer, this term is not enforceable without an authenticated record or a manifestation of assent to a record. See Section 307(d) and (g).

           The justification for different contract rules in Revised Article 2 and UCITA seems to rest on differences between goods and copies of software or other digital works. While it is true that the latter are more easily copied and are currently often marketed for a limited number of users per copy, default terms and other terms supplied by law can deal with these differences, without stretching contract law beyond recognition. Intellectual property law already supplies rules to limit copying after sale of a copy of a copyrighted work, while protecting the societal interest in free flow of information. Intellectual property law also lets a purchaser transfer its own copy. If anti-transfer terms buried in clickwrap become enforceable, it would be much more costly to sell a business. Extensive due diligence searches, often combined with payments to licensors, would be needed before an accountant could certify that the seller has the power to transfer software crucial to the business.

           UCITA itself provides a default term limiting use to "a number of users which is reasonable in light of the informational rights involved and the commercial circumstances." Section 307(c). Alternatively, industry could develop a set of use terms (one user, one machine, etc.) that could be easily specified in informal orders, without the need for long forms. In short, UCITA's contract rules are not needed to protect software makers against copying or to allow them to limit use in reasonable ways. Indeed, UCITA's contracting rules govern all terms, making it easy for publishers to get all the form terms they desire, for example excluding all warranties of quality, without meaningful assent by the other party. They also protect software vendors from having to honor oral agreements actually made. This one-sided approach even extends to permitting vendors to use a term in shrinkwrap or clickwrap to give themselves power to keep changing material terms unilaterally. UCITA Section 304. This section misuses the terms "modified" and "modification" to refer to unilaterally-dictated changes, rather than the usual meaning of modification, a change agreed to by both parties. Professor Perillo has it exactly right when he describes UCITA as a "command and control" regime.

           We urge you to reject UCITA and begin to think about a more reasonable and limited alternative.

 

Sincerely,

 

Mary Becker
DePaul University College of Law

Hazel Glenn Beh
University of Hawaii, William S. Richardson School of Law

Brian Bix
George Washington University Law School

Carl S. Bjerre
University of Oregon School of Law

Jean Braucher
University of Arizona, James e. Rogers College of Law

Carol L. Chomsky
University of Minnesota Law School

Donald F. Clifford
University of North Carolina School of Law

William S. Dodge
Hastings College of Law

Jay M. Feinman
Rutgers University School of Law (Camden)

Harry Flechtner
University of Pittsburgh School of Law

Susan Freiwald
University of San Francisco School of Law

Mark P. Gergen
University of Texas School of Law

Michael Greenfield
Washington University School of Law

Robert W. Gordon
Yale Law School

Harold Greenberg
Indiana University School of Law–Indianapolis

Karen Gross
New York Law School

Sheldon W. Halpern
Ohio State University College of Law

Karen Halverson
John Marshall Law School

Thomas Lee Hazen
University of North Carolina School of Law

Howard O. Hunter
emory Law School

Alan Hyde
Rutgers University School of Law (Newark)

Howard I. Kalodner
Western New england College School of Law

Peter Linzer
University of Houston Law Center

Stewart Macaulay
University of Wisconsin Law School

Alfred W. Meyer
Valparaiso University School of Law

Francis J. Mootz III
Western New england College School of Law

Margaret Moses
Loyola University-Chicago School of Law

John e. Murray, Jr.
Duquesne University

Suman Naresh
Tulane Law School

Spencer Neth
Case Western Reserve University School of Law

Deborah W. Post
Touro Law Center

Dee Pridgen
University of Wyoming College of Law

James R. Ratner
University of Arizona, James e. Rogers College of Law

R. J. Robertson, Jr.
Southern Illinois University School of Law

Keith A. Rowley
Mississippi College School of Law

Irma S. Russell
University of Memphis School of Law

Carol Sanger
Columbia Law School

W. David Slawson
University of Southern California Law School

Maura I. Strassberg
Drake University Law School

Kurt A. Strasser
University of Connecticut School of Law

Joseph R. Thome
University of Wisconsin Law School

Michael P. Van Alstine
University of Cincinnati College of Law

Kathleen Waits
University of Tulsa College of Law

Neil G. Williams
Loyola University-Chicago School of Law

Jane K. Winn
Southern Methodist University School of Law


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
 


Want to link to my UCITA pages?
Want to suggest a link for me to add?
Please read my
Requests and Suggestions for Linking

The extra text menu links (previously here) are being removed in the site redesign.
Browser and search engine improvements have eliminated the motivation/necessity for them.

This page created:
before
Fri, 25.Oct.2002

Last updated:
16:20, Sat, 10.May.2014

. . .

NOTICE --- SITE  UNDERGOING REWRITE - SEE LINK BELOW FOR DETAILS

 Explanation of the rewrite: New Page Layout.
 Check out my blog: My Ephemerae
 Yes ... I want you to link to my site Please link to me
 Want to email me? I'd love to hear from you.
 I have begun tutoring in the South Houston, Texas area.

. . .
ucita, uniform computer information transactions act, 45 professors of contracts and commercial law, ucita, uniform computer information transactions act, 45 professors of contracts and commercial law, qwerty . . . ucita, uniform computer information transactions act, 45 professors of contracts and commercial law, ucita, uniform computer information transactions act, 45 professors of contracts and commercial law, qwerty