Vol 7 No 1 - Roger Williams University School of Law

quite controversial.49 As the history of UCITA demonstrates,there was a two-fold recognition in the drafting process: that tosome extent the application of some of the sales provisions tosoftware and information products was appropriate, but that therewas a need for different rules in certain areas. The firstbattleground has been on where there are sufficient differences tojustify different rules i.e., which of Article 2’s rules could beapplied without change to software or information contracts.Industry has been adamant in its opposition to the expansion ofArticle 2 in any fashion to cover information products (includingsoftware).50 That opposition ultimately led to the split betweenArticles 2 and Article 2B. After the split, however, a secondbattleground developed that still persists: what transactions arecovered by the old sale of goods rubric (Article 2) and which aresubject to the new act (UCITA).After abandonment of attempts to include software productswithin the scope of the Article 2 of the Uniform Commercial Code,efforts were made to define the line between what constitutedgoods (covered by the UCC) and what constituted information(governed by Article 2B or UCITA).51 Since both Article 2 andUCITA contain scope provisions, two different but interrelateddebates flourished. Those supporting UCITA (and its substantiveprovisions) wanted as broad a scope provision as possible in thatact and as restrictive a scope provision as possible for Article 2; inaddition, they wanted to give the parties the ability to opt into thescope of UCITA through contract.52 Those opposing UCITA, of49. See supra notes 25, 27.50. See, e.g., Lorin Brennan, Why Article 2 Cannot Apply to SoftwareTransactions, 38 Duq. L. Rev. 459 (2000) (arguing, however, that either Article 2 mustapply in its totality or a separate statute must govern).51. Indeed, not only did the decision to split Article 2B off from Article 2 increasethe importance of the scope provisions, it turned the scope provisions of both drafts intoa “political football.” See Speidel, Symposium Intro, supra note 12, at 792 (“[A]fter thecollapse of “hub and spoke,” there was growing tension between the Article 2 and theArticle 2B projects (now UCITA), both as to the degree of textual conformity thatshould exist between them and the line beyond which a sale of goods stopped and acomputer information transaction began. That tension persists to this day.”); see alsoAnn Lousin, Proposed UCC 2-103 of the 2000 Version of the Revision of Article 2, 54SMU L. Rev. 913 (2001) (explaining the changes to the draft Article 2). For a critiqueof the current scope provisions of UCITA, see Stephen Y. Chow, UCITA: A 1990’sVision of E-Commerce, 18 J. Marshall J. Computer & Info. L. 323 (1999).52. The broad reach of UCITA, and the potential it might sweep in transactionsthat would otherwise be governed by Article 2, led to a motion at the 1998 ALI AnnualMeeting discussing Article 2B, the predecessor of UCITA, to “limit the scope of Article