Vol 7 No 1 - Roger Williams University School of Law

course, wanted to keep its scope narrow and were opposed to anyattempt to limit the scope of Article 2 in any way. Some were ofthe view that software and information (particularly off-the-shelfsoftware) should not be excluded at all from the definition ofgoods, primarily on the grounds that this would deny purchasersprotections they previously had.53One issue was the mixed transaction: goods with an elementof information (either “embedded” in or packaged with the goods).Critics of UCITA expressed concern (i) that the presence ofsoftware or information would appropriately exclude somethingfrom Article 2 coverage; and (ii) that in appropriate circumstancesArticle 2 would cover both the information and the goods as aunit.54 By contrast, supporters of UCITA wanted to retain theability, to the extent possible, to have UCITA continue to cover theinformation and even the medium or tangible good on which theinformation was delivered.55 Extreme discomfort with the scope2B to software contracts, access contracts, and such other transactions as are includedexpressly and defined with sufficient clarity to avoid surprise to affected parties.” Themotion was withdrawn in light of representations by the Chair of the DraftingCommittee that a task force would be producing a report on the appropriate scope ofArticle 2B. Actions Taken with Respect to Drafts Submitted at 1998 Annual Meeting, athttp://www.ali.org/ali/ACTIONS.htm (last visited Jan. 13, 2002).53. The argument was that courts had “gotten it right” when the question hadarisen in the past, and thus it would be inadvisable to override existing law. See, e.g.,Stephen Y. Chow, Motions Relating to Proposed Revised Uniform Commercial CodeArticle 2 (1999), at http://www.ali-aba.org/ali/1999_CHOW_UCC2.htm (last visitedSept. 8, 2001); Memorandum from Jean Braucher & Peter Linzer to Members of theAmerican Law Institute (May 5, 1998), available at http://www.aliaba.org/ali/braucher.htm(last visited Sept. 8, 2001). At the 1998 ALI Annual Meeting,a motion was made to delete the scope provisions in the 1998 Article 2 draft that wouldhave excluded software from Article 2 coverage in order to remain silent on the issue;the motion was defeated by a vote of 97 to 78. See Actions Taken with Respect to DraftsSubmitted at 1999 Annual Meeting, available at http://www.ali.org (last visited Nov.17, 2001); see also Peter A. Alces, W(h)ither Warranty: The B(l)oom of ProductsLiability Theory in Cases of Deficient Software Design, 87 Cal. L. Rev. 271 (1999)(concluding that strict liability could replace the warranty protections in the UCC);Marion W. Benfield, Jr. & Peter A. Alces, Reinventing the Wheel, 35 Wm. & Mary L.Rev. 1405 (1994) (analyzing the hub and spoke approach with regard to contract lawand commercial law).54. The classic example is the automobile with a computer chip controlling theautomatic braking system. The consensus was that, in the event of a failure of thebraking system, the buyer of the car would be able to proceed under Article 2 and nothave her remedies depend upon proof of whether the hardware or the software was thecause. For a criticism of UCITA’s treatment of the mixed transaction, see Chow, supranote 51, at 331.55. UCITA as currently drafted covers not only computer software, but themedium on which it is stored, i.e., the “copy.” See UCITA § 103(b)(1).