Vol 7 No 1 - Roger Williams University School of Law

It is against this background that UCITA was drafted. Thedrafting history of UCITA has been described at lengthelsewhere.9 Nonetheless, a few critical aspects of that historybear repeating.First, the concept of statutory treatment of softwaretransactions originally surfaced over fifteen years ago ascommercial lawyers grappled with judicial attempts to apply thegoods provisions of the Uniform Commercial Code to software.10At the outset, the issues and the discourse were framed from acommercial perspective, focusing on contracting issues such aswarranties and remedies in the software context; only later in theprocess (as more and more software and information industryrepresentatives became involved) did the focus shift from thepotential of a new software contracting statute to more expansivetreatment of information and additional protections for licensorsof information.11 This evolution—from contract issues toComputer Information Transactions Act, in Advanced Licensing Agreements for theNew Economy 2001, 201 (P.L.I. ed., 2001); Jeff C. Dodd, Time and Assent in theFormation of Information Contracts: The Mischief of Applying Article 2 to InformationContracts, 36 Hous. L. Rev. 195 (1999); Philip M. Nichols, Electronic Uncertaintywithin the International Trade Regime, 15 Am. U. Int’l L. Rev. 1379 (2000).9. There has been an exceptional amount of literature devoted to UCITA. Atleast two law review symposia issues have dealt with the topic. Symposium, Licensingin the Digital Age, 36 Hous. L. Rev. 1 (1999); Symposium, Approaching E-CommerceThrough Uniform Legislation: Understanding the Uniform Computer InformationTransactions Act and the Uniform Electronic Transactions Act, 38 Duq. L. Rev. 205(Winter 2000). See, e.g., Raymond T. Nimmer, Images and Contract Law—What LawApplies to Transactions in Information, 36 Hous. L. Rev. 1 (1999) [hereinafter Nimmer,Images]; Raymond T. Nimmer, Through the Looking Glass: What Courts and UCITASay about the Scope of Contract Law in the Information Age, 38 Duq. L. Rev. 255 (2000)[hereinafter Nimmer, Looking Glass]; Raymond T. Nimmer & Holly K. Towle, UCCArticle 2B Would Govern Software Licensing, Nat’l L.J., Feb. 12, 1996, at C2; Holly K.Towle, Mass Market Transactions in the Uniform Computer Information TransactionsAct, 38 Duq. L. Rev. 371 (2000); Holly K. Towle, The Politics of Licensing Law, 36 Hous.L. Rev. 121 (1999).10. The concept of a statute devoted to software arose out of the work of an AdHoc Subcommittee on the Scope of the Uniform Commercial Code Committee of theAmerican Bar Association and was first discussed in print in 1988. See Amelia H. Boss& William J. Woodward, Jr., Scope of the Uniform Commercial Code: Survey ofComputer Contracting Cases, 43 Bus. Law. 1513 (1988); Amelia H. Boss et al., Scope ofthe Uniform Commercial Code; Advances in Technology and Survey of ComputerContracting Cases, 44 Bus. Law. 1671 (1989); Jeffrey B. Ritter, Scope of The UniformCommercial Code: Computer Contracting Cases and Electronic Commercial Practices,45 Bus. Law. 2533 (1990).11. This shift occurred during the period when the use of licensing to govern andrestrict the use of information gained importance and visibility as courts and Congressrefused to grant copyright protection to information such as databases. The prominence