Vol 7 No 1 - Roger Williams University School of Law

information policy issues—increased the visibility of the product.Moreover, it significantly added to the complexity of the projectand the number of economic interests affected by the proposal,making consensus on such a statute harder to achieve andcontributing to the growing dissatisfaction with its provisions.Second, the efforts to address software contracts were initiallycombined with other efforts to revise domestic sales law—arecognition that in the generic area of contracting, there was agreat deal of overlap between contracts for the transfer of goodsand contracts for the transfer of information.12 Although it wasacknowledged that certain aspects of information contracts mightrequire different provisions, the similarities were deemedsufficient enough, at the outset, to justify a core set of provisions(“hub” principles) governing both goods and information contracts,with special rules (“spoke” rules) necessary to deal with theunique aspects of each.13 This recognition (that there areof licensing also illustrated the desire of licensors to place additional restrictions on theuse of copyrighted information not otherwise granted by copyright law. See David A.Rice, Legal-Technological Regulation of Information Access, in Libraries, Museums,and Archives: Legal Issues and Ethical Challenges in the New Information Era 275(Tomas A. Lipinski, ed. 2002). A second significant development occurred during thisperiod that profoundly affected the substance of the UCITA discussions. Althoughearly cases, such as Vault Corp. v. Software Ltd., 847 F.2d 255 (5th Cir. 1988) andStep-Saver Data Sys. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991), cast significant doubton the enforceability of licenses in the software context, two significant cases from theSeventh Circuit Court of Appeals, ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996),and Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.1997), cert. denied, 118 S. Ct. 47(1997), upheld this method of contracting. This development permitted the softwareindustry, in particular, to refocus its efforts on what it hoped to achieve from theUCITA drafting process.12. From 1991 to 1995, the Drafting Committee to revise Article 2 considered notonly the substance of the goods provisions, but also the question of whether to dealwith software in the context of Article 2—in what was dubbed as a “hub-and-spoke”approach—or in a separate statute (whether or not a part of the UCC). See Linda J.Rusch, A History and Perspective of Revised Article 2: The Never Ending Saga of aSearch for Balance, 52 SMU L. Rev. 1683, 1715 (1999); Richard E. Speidel,Introduction to Symposium on Proposed Revised Article 2, 54 SMU L. Rev. 787 (2001)[hereinafter Speidel, Symposium Intro]; Richard E. Speidel, Revising UCC Article 2: AView From the Trenches, 52 Hastings L.J. 607 (2001) [hereinafter Speidel, Trenches].Folding the discussions of how to treat software licensing into the ongoing Article 2sale of goods revision process was an implicit recognition of the substantial overlapbetween the substantive rules governing each type of transaction.13. Under the proposed “hub-and-spoke” approach, the core contracting principleswould apply to every transaction: sales (existing Article 2); leases (existing Article 2A)and software licenses. Potentially, they could also apply to other types of contracts,such as services contracts. These core principles would be followed by “spokes” settingforth specific rules for the particular transaction at hand.