Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law
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the international context), then the answer is no. My involvementin the drafting <strong>of</strong> UCITA for over fourteen years—from theinception <strong>of</strong> the idea until almost the end1—has undoubtedlyinfluenced both <strong>of</strong> my responses to the main question.It has also convinced me that the nature <strong>of</strong> the debatesurrounding UCITA needs to change. Over the two years sinceUCITA was promulgated by the National Conference <strong>of</strong>Commissioners on Uniform State <strong>Law</strong>s, and indeed dating frombefore its enactment, there has been extensive opposition to theproject.2 Opponents <strong>of</strong> the legislation have raised concerns overthe adoption process (some concerns meritorious, others merereiterations <strong>of</strong> concerns without basis or repetition <strong>of</strong> old concernssince proven wrong), and in the bulk <strong>of</strong> states to date, thatopposition has led to the failure <strong>of</strong> UCITA to successfully navigatethe state legislative process or, in some cases, has led toenactment <strong>of</strong> anti-UCITA legislation.3 In the process, proponents<strong>of</strong> the legislation have tried to negotiate compromises, askingopponents to identify those provisions on which there isdisagreement to see whether concerns could be addressed.4 Thus,1. I chaired the Ad Hoc Committee on Scope <strong>of</strong> the Uniform Commercial Code <strong>of</strong>the American Bar Association’s Section <strong>of</strong> Business <strong>Law</strong>, Uniform Commercial CodeCommittee, and in 1985 helped launch the initial study on s<strong>of</strong>tware contracting underthe UCC. That group ultimately produced a report recommending statutory treatment<strong>of</strong> s<strong>of</strong>tware contracts, at which point I began working with the National Conference <strong>of</strong>Commissioners on Uniform State <strong>Law</strong>s (NCCUSL) to study the potential <strong>of</strong> this newproject. When the Conference (along with its sister organization, the American <strong>Law</strong>Institute) approved the creation <strong>of</strong> a Drafting Committee on s<strong>of</strong>tware contracting, Iwas appointed to that committee as the American <strong>Law</strong> Institute representative andsimilarly served on the Drafting Committee to revise Uniform Commercial Code Article2. When the decision was made to split information/s<strong>of</strong>tware licensing <strong>of</strong>f from Article2, I continued on the Article 2 Drafting Committee and also served as the American<strong>Law</strong> Institute member <strong>of</strong> the Drafting Committee on Article 2B Licensing. I served inthat capacity until the Spring <strong>of</strong> 1999, when the American <strong>Law</strong> Institute withdrewfrom the process, and the project was retitled the “Uniform Computer InformationTransactions Act” (UCITA). At that time, I was asked to continue as an advisor on theproject, but declined to do so. Three months later the National Conference completedits work on UCITA. The complete text <strong>of</strong> the Act is available athttp://www.law.upenn.edu/bll/ulc/ucita/ucitsFinal00.htm. This article reflectsdevelopments through August 2001.2. See infra notes 18-28 and accompanying text. For a sampling <strong>of</strong> the depth andbreadth <strong>of</strong> the opposition, see http://www.4cite.org (last visited <strong>No</strong>v. 10, 2001) andhttp://www.bads<strong>of</strong>tware.com (last visited <strong>No</strong>v. 10, 2001).3. See infra note 19 and accompanying text.4. This led to the drafting <strong>of</strong> amendments to UCITA, but not to any extensiverevisions. The NCCUSL approved amendments to UCITA in 2000 and 2001, makingminor changes to section 103 (excluding motion picture industry), section 216 (adding