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Cem Kaner's UCC 2b article - his brief summary
Subject: Re: Article 2b
Date: Tue, 02 Dec 1997 05:45:22 -0800
From: Cem Kaner <firstname.lastname@example.org>
To: Multiple recipients of list <email@example.com>
On 11/28/97, Paul Sleven <firstname.lastname@example.org> wrote:
> CF Ludena <email@example.com> asks:
> > What does the relevant part of UCC art 2B say to make necessary this
> > preemption provision in the copyright act?
> Article 2b does not limit fair use in any way. It merely confirms
> existing law that shrinkwrap licenses are enforceable and provides new
> procedural protections ensuring that licensees who pay for software
> before seeing the license terms have the right to return it if they
> don't like those terms.
We've talked about the copyright problem at length in the last two
Article 2B meetings. The point of view repeatedly expressed by
publishers' representatives a week ago, at the Article 2B meeting in
Memphis, is that the Article 2B drafting committee should consider
itself incompetent to limit the broad intellectual property scope of the
2B license because that would be venturing on the territory of federal
intellectual policy. The right forum to make sure that Article 2B
cannot do the following things, among others, is Congress. Well,
finally some of this is before congress.
Here are some examples of use restrictions that appear to be fair under
Article 2B (as the publishers' lobbyists have put it, Article 2B is
"neutral" about these. It permits anything, and it is up to federal
law, they say, to block them.). I'm pulling these from my recent paper,
"Article 2B is Fundamentally Unfair to Mass-Market Software Customers",
at http://www.badsoftware.com/ali.htm. I have additional discussion of
the anticompetitive nature of these restrictions at "Restricting
Competition in the Software Industry: Impact of the Pending Revisions to
the Uniform Commercial Code", http://www.badsoftware.com/nader.htm,
which I presented at Ralph Nader's recent Appraising Microsoft
- Prohibition against publishing detailed criticisms of the software.
This is dressed up as a confidentiality restriction. Here are
examples from current mass-market licenses, "You agree to hold the
Package within your Organization and shall not, without our specific
written consent. . . publish or communicate or disclose to third
parties any part of the Package" (Symantec) and also "The customer will
not publish reviews of the product without prior written consent from
- Prohibition against reverse engineering.
- Prohibition against decompiling the software..
- Prohibition (via the ban of reverse engineering) against developing
products that are interoperable with this one.
- Prohibition against lending the software.
- Restrictions on the location of use of the product, such as not
being able to load or run a single copy on a machine that is used as a
- Restrictions on the nature or purposes of use of the product.
- Restrictions against competition. For example, some mass-market
products bar use that would result in creation of a competing product.
This might seem to you to be harmless when it involves not using one
compiler to create another compiler. But what about not using research
material from an on-line service to write a book that would be published
with a competing publisher? (This particular issue is realit has arisen
in private negotiations.)
- Restrictions on who can use the product. (The neighbours kids
can't come to your house to play with your childs program on you
Additionally, 2B contains many provisions that jointly validate database
publishers' rights in their databases. West Publishing and LEXIS have
both had their say in 2B. If you get a public domain court case from
Westlaw then, under Article 2B, West can impose any restrictions it
wants on your ability to use and copy (including making temporary copies
in RAM, which 2B defines as copies) that case.
Cem Kaner, J.D., Ph.D. Attorney at Law
P.O. Box 1200 Santa Clara, CA 95052 408-244-7000
Author (with Falk & Nguyen) of TESTING COMPUTER SOFTWARE (2nd Ed, VNR)
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