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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 <kaner@kaner.com>
   Reply-To: cni-copyright@cni.org
         To: Multiple recipients of list <cni-copyright@cni.org>
  On 11/28/97, Paul Sleven <psleven@cybernex.net> wrote:
  > CF Ludena <ludena@aol.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
  network server. 
     - 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
  child's computer.)
  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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