Impact of Article 2B

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Quotes from Conference Speakers

Here are the answers submitted by conference speakers to the following question:

Who if anyone should care about the intersection of Article 2B and intellectual property law (or other federal policy)? Why?

    "The patent community should definitely be paying attention to Article 2B. While the draft explicitly excludes non-software related patents from coverage, it uses many patent situations as examples, inviting courts to apply it by analogy.   Also, the Article explicitly covers the licensing of trade secrets.  Its allocation of rights and duties will affect the ultimate patentability of the technologies licensed under its terms." Rochell Dreyfuss of New York University School of Law

    "Everyone should care.  If information is only provided under negotiated contracts, only negotiators will have information.  Article 2B enables mass-market distribution of information." Holly K. Towle, Preston Gates & Ellis

    "Some believe they need to create a war between copyright and contract. They argue that recent court decisions permit contracts to override and destroy copyright or that copyright must be construed to outlaw many kinds of contracts.  Copyright and contract can work in harmony, but for E-commerce to have a future, contract law must keep up--that is the goal of Article 2B." Joel Rothstein Wolfson, Associate General Counsel, The Nasdaq Stock Market, Inc.

    "Contract and copyright have co-existed for generations and each is faced with a need to accommodate modern technology and modern ways of doing business. Article 2B provides a template that ensures the continued strength of commerce in this new environment, thus preserving the traditional and fundamental assumptions of our law about both how the U.S. economy functions and how copyrighted works are developed for and disseminated in commerce." Raymond Nimmer, Reporter for Article 2B of the UCC and Professor of Law at the University of Houston

    "UCC 2B will remake the law of software and intellectual property licensing in a radical way.  You may think you know what your contracts mean now, and what terms are enforceable.  But all that will change as early as this fall. If your business has anything to do with software, movies, music, books, patents, trade secrets, or multimedia, you *must* start now to figure out what UCC 2B means.  And the best way to do that is to attend this conference." Mark Lemley, University of Texas at Austin

    " The grand project of Article 2B addresses the concern that the law for widgets may be inadequate for digits.  Although that fear may validly apply to some elements of digital commerce (and commerce in digits), we reject the perceived inadequacy of the present legal regime with respect to protecting copyright owners' interests.  
    Copyright law embodies a delicate equilibrium that already calibrates rights between owners and users.  Article 2B poses the specter of being used to alter that balance by contracting the scope of users rights.  We submit that Article 2B's presumptive validation of mass market licensing agreements, if not appropriately cabined, threatens to subvert copyright's balance and therefore cannot stand."
    David Nimmer and Elliot Brown, Irell & Manella

    "Having worked with a UCC2B concept for a decade, I am very concerned that the current draft allows restraints on alienation to masquerade as intellectual property rights and turns in terrorem notices into contracts that will disrupt traditional licensing and due diligence practices, thereby adding great cost to investment in new ideas." Stephen Y. Chow, Perkins Smith & Cohen

    "Intellectual property law provides many 'default rules' for mass-market transactions in intellectual property products.  Many of them balance the interests of authors, publishers and the consuming public.  An author or publisher may be entitled to control the first sale of her works to the public, but someone who pays for a copy of the work can sell her copy, give it to a library, or even rent it without getting permission.  The consumer can also make fair uses of the work, such as making a photocopy of a portion of it, or quoting from it in an essay that he might write.  Some rightsholders may hope to contract around the consumer rights provisions of copyright law by deciding to 'license' their works under Article 2B of the UCC.  This conference will explore how public policy balances are likely to pop up in the context of licensed information." Pamela Samuelson, Boalt Hall School of Law

Stay tuned for more quotes...