Vol 7 No 1 - Roger Williams University School of Law

persistent questions raised about UCITA is whether, even withinthe United States, industry practice is sufficiently established tojustify codification.120 One of the reasons given for the decision toabandon attempts to include information within the UniformCommercial Code (Article 2B) and to proceed with a uniform lawoutside the Code was that the industry was sufficiently in fluxthat it would be premature to include it within the Code. Thissame reasoning may well justify not proceeding with it at all,domestically or internationally, at this time.121It should be noted that, on an international level, not allconcepts included in UCITA may be necessary or desirable. To theextent UCITA purports to cover electronic contracting, forexample, much of it may be unnecessary in light of products suchas the UNCITRAL Model Law on Electronic Commerce or theUNCITRAL Model Law on Electronic Signature. Moreimportantly, as noted earlier, many of the concepts of UCITA maybe inconsistent with international standards. Much of theconsumer treatment, for example, must be considered in light ofinternational norms such as those evolving within the OECD.122Collision With Intellectual PropertyProbably the greatest obstacle to the wholesale adoption ofUCITA internationally is its intrusion into the area of intellectualproperty. Although UCITA purports to be simply a “contracting”statute rather than an “intellectual property” regime,123 one of thebig areas of controversy in the United States is the intersection ofUCITA and its validation of licensing on intellectual propertyregimes.124 The relationship of licensing to intellectual property120. See O’Rourke, supra note 73, at 651 (“In many industries which would begoverned by [UCITA], it is premature to refer to a usage of trade. Customs are rapidlyevolving, and deference to a particular norm at a particular time may not beappropriate.”). Additionally, the technologies themselves are still rapidly changing.See A. Michael Froomkin, Article 2B as Legal Software for Electronic Contracting-Operating System or Trojan Horse?, 13 Berkeley Tech. L.J. 1023, 1026 (1998) (“Onereason why Article 2B [and UCITA have] proven to be so difficult to get right is thatthe information technologies to which [they] would apply are themselves in a state offerment.”).121. Commercial law tends to be descriptive or enabling rather than normative;until there is something to describe, it is difficult to legislate.122. See OECD, supra note 77 and accompanying text.123. See, e.g., Nimmer, Looking Glass, supra note 9, at 304 (“UCITA deals withcontracts and not property rights.”).124. Hugenholtz, supra note 78, at 78-79; Rochelle C. Dreyfuss, UCITA in the