1998 Robert W. Gomulkiewiz.

Mr. Gomulkiewicz is a senior corporate attorney for Microsoft Corporation. He also chairs the Article 2B Working Group of the Business Software Alliance. The views expressed in this article are the personal views of the author, not those of Microsoft or the Business Software Alliance. The author would like to thank J.D. Fugate, Hosea Harvey, John Lange, Robert B. Mitchell, and Martin F. Smith for their contributions to this Article.

1. Mark A. Lemley, Beyond Preemption: The Federal Law and Policy of Intellectual Property Licensing, 87 CALIF. L. REV. 113, 114 (forthcoming 1999) ("Proposed Uniform Commercial Code Article 2B will remake the law of software and intellectual property licensing in a radical way."). See also Dennis J. Karjala, Federal Preemption of Shrinkwrap And On-Line Licenses, 22 U. DAYTON L. REV. 511 (1997) (arguing Article 2B is unconstitutional); David A. Rice, Digital Information As Property And Product: U.C.C. Article 2B, 22 U. DAYTON L. REV. 621 (1997); J. Thomas Warlick, A Wolf In Sheep's Clothing? Information Licensing and De Facto Copyright Legislation in UCC 2B, J. COPYRIGHT SOC'Y U.S.A. 158, 172 (1997) ("2B appears poised to be the impetus for a deluge of oppressive licenses and litigation against hapless licensees."). Software and information licensing has been around for a long time (Dunn & Bradstreet has been licensing information for over one hundred years) and needs no further impetus, though licensing law could certainly benefit from more clarity. While Article 2B does not represent new licensing law or practice, it is different than Article 2. As explained infra, therein lies much of the promise of Article 2B.

2. Until ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), no reported case had determined the enforceability of a mass market license agreement between a software publisher and an end user. The cases that touched on mass market licenses involved contracts between a software publisher and a distributor. In those cases, the software publisher tried (without success) to use the end user license to amend or alter the distribution agreement between the parties. See Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991); Arizona Retail Sys., Inc. v. Software Link, Inc., 831 F. Supp. 759 (D. Ariz. 1993). Arizona Retail, however, actually anticipates the court's ruling in ProCD. In Arizona Retail, the distributor, a value-added retailer, initially acquired an evaluation version of the software that was accompanied by an "evaluation license." In this context, the retailer was more like an end user than a distributor of the software. The court held that the retailer was bound by the terms of the evaluation license. See Arizona Retail, 831 F. Supp. at 766 .

3. But see Jeffery Dodd, Art. 2B Offers Jurisprudence for All Forms, NAT. L.J., Sept. 21, 1998, at B13, B16 (criticizing the "mechanistic approach" to contract formation rules that makes "choreography"-timing and sequence-all-important); Robert B. Mitchell, Restoring Realism in Software Licensing Law, MULTIMEDIA & TECH. LICENSING L. REP., Apr. 1996, at 4, 7 (arguing that courts have departed from the "legal realist" roots of the U.C.C. when applying it to software licenses).

4. The ProCD ruling may have surprised some scholars because they mistakenly believed that the body of critical commentary on mass market licenses was more compelling than the overwhelming industry practice and the economics that drive the industry. See Robert W. Gomulkiewicz & Mary L. Williamson, A Brief Defense of Mass Market Software License Agreements, 22 RUTGERS COMPUTER & TECH. L.J. 335 (1996) (describing the importance of mass market licenses for both publishers and users, and citing critical commentary); Wayne D. Bennett, Legal and Blinding, CIO MAGAZINE (Oct. 1, 1998) (visited Nov. 23, 1998) <http://www.cio.com/archive/webbusiness/100198_gray_content.html> (criticizing the critics of Article 2B who claim that it represents new legal principles).

5. The goal of uniform law makers should be, as Grant Gilmore put it, "to be accurate and not to be original." Grant Gilmore, On the Difficulties of Codifying Commercial Law, 57 Y (Mar. 1998 Draft). Though Article 2B is not new law, it is fair to say it has caused a new focus on software and information licensing.

6. The Article 2B project did not begin at the behest of the software industry. Indeed, software industry trade associations voiced their disapproval of such a project. Once the project began, however, initially as part of the Article 2 re-write and then as a separate U.C.C. article, the software industry as well as other information product industries began to participate in the process. See U.C.C. Article 2B, Prefatory Note at 5-7 (July 24-31, 1998 Draft) (describing the history of the Article 2B project); Raymond T. Nimmer et al., License Contracts Under Article 2 of the Uniform Commercial Code: A Proposal, 19 RUTGERS COMPUTER & TECH. L.J. 281 (1993); Thom Weidlich, Commission Plans New U.C.C. Article, NAT. L.J., Aug. 28, 1995, at B1.

7. See generally Marianne B. Culhane, The UCC Revision Process: Legislation You Should See in the Making, 26 CREIGHTON L. REV. 29 (1992).

8. Software licensing is often divided into two general categories: upstream licensing and downstream licensing. Upstream licensing refers to licenses a publisher receives to create its product. Downstream licensing refers to licenses a publisher gives to users or distributors of its product. An example of an upstream license would be a license for spell checking software that a publisher receives to include the spell checking software in the publisher's word processing product. An example of downstream licensing would be an end user license or a license with a computer manufacturer to install and distribute system software on its computers. Article 2B applies to both types of licenses.

9. See Brenda Sandburg, Commercial Code Upgrade May Fall Apart, THE RECORDER, Sept. 28, 1998, at 1 (describing the qualms of the entertainment and communications industries about a contract statute with one set of rules for all transactions in information).

10. The Free Software Foundation does not make its software "free" by placing it in the public domain. Rather, it does so via mass market licensing. See Free Software Foundation, What is Copyleft? (visited Nov. 5, 1998) <http://www.fsf.org/copyleft/copyleft.html>. According to the Debian organization, publisher of the Debian GNU/Linux "free software" operating system, "[t]ruly free software is always free. Software that is placed in the public domain can be snapped up and put into non-free programs, and be free no more. To stay free, software must be copyrighted and licensed." Debian GNU/Linux, What Does Free Mean? or What Do You Mean By Open Software? (visited Nov. 5, 1998) <http://www.debian.org/intro/free>.

11. See Consumer Reports ONLINE, User Agreement (visited Nov. 11, 1998) <http://www.consumerreports.org/Functions/Join/tos.html>.

12. See U.C. Berkeley Office of Technology Licensing, Software Copyright Notice and Disclaimer (visited Nov. 5, 1998) <http://www.socrates.berkeley.edu/~otl/Copnoti.html>.

13. Relatively new, however, are court decisions clearly articulating the value of mass market licensing. See Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997), cert. denied 118 S.Ct. 47 (1997) (upholding contract terms presented to the user post-payment in a mixed software and computer hardware transaction); ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); Hotmail v. Van$ Money Pie, Inc., 47 U.S.P.Q.2d 1020 (N.D. Cal. 1998) (assuming enforceability of mass market license); Arizona Retail Sys. v. Software Link, 831 F. Supp.759, 766 (D. Ariz. 1993) (holding a mass market license enforceable in the initial transaction between a value added reseller and a software publisher, but unenforceable in a subsequent transaction); Brower v. Gateway 2000, 676 N.Y.S.2d 569 (1998) (upholding contract terms presented to the user post-payment in a mixed software and computer hardware transaction).

14. Standard form contracts are not an innovation of software publishers. The use of standard form contracts is commonplace in virtually all lines of business. See 3 LAWRENCE A. CUNNINGHAM & ARTHUR J. JACOBSON, CORBIN ON CONTRACTS 559A(B) (rev. ed. Supp. 1998); 1 E. A. Farnsworth, FARNSWORTH ON CONTRACTS 4.26 (1990). Software publishers have been innovative, however, in the various ways they allow users to manifest assent to the terms. See Gomulkiewicz & Williamson, supra note 4, at 339-41. Software publishers have also been unique in their efforts to actually draw contract terms to the user's attention and require manifestation of assent. Id. at 352.

15. See id.

16. See ProCD, 86 F.3d at 1453 ("In the end, the terms of the license are conceptually identical to the contents of the package."). The use of mass market licenses enables the publisher to tailor a collection of rights to particular types of uses, so that the license, rather than merely the underlying software, becomes the product acquired by the user. This practice has analogies to other industries, such as the airline industry. An airline ticket is nothing more than a right to ride on a given flight, in a certain class of seat, on a certain day and time, to a certain location. The ticket price and associated rights vary from passenger to passenger, depending on the ticket the passenger acquired. For example, one passenger in coach may have paid twice as much as the passenger sitting across the aisle, but the higher priced ticket may entitle the passenger to a confirmed seat on another flight in case the airline cancels the regularly scheduled flight.

17. 86 F.3d 1447 (7th Cir. 1996).

18. See, e.g., Karjala, supra note 1; Apik Minassian, The Death of Copyright: Enforceability of Shrinkwrap Licensing Agreements, 45 UCLA L. REV. 567 (1997); Kell Corrigan Mercer, Note, Consumer Shrink-Wrap Licenses and Public Domain Materials; Copyright Preemption and Uniform Commercial Code Validity in ProCD v. Zeidenberg, 30 CREIGHTON L. REV. 1287 (1997). Some commentators disparage the ProCD decision by saying that it has been severely criticized or that most commentators disagree with the court's opinion. See, e.g., David A. Rice, Memorandum to Article 2B Drafting Committee (Mar. 18, 1998) (on file with author) (Professor Rice is a member of the Article 2B Drafting Committee). This count-up-the-law-review-article method of evaluating ProCD is a poor basis to judge the merits of the decision. Most commentators write to critique cases, not to praise them, so seeing more criticism than accolades is normal in legal scholarship. Even at that, one might quarrel with whether particular articles are, on balance, supportive or critical. See Maureen A. O'Rourke, Copyright Preemption After the ProCD Case, a Market-Based Approach, 12 BERKELEY TECH. L.J. 53 (1997) (agreeing with the court on contract grounds, while offering criticism on preemption grounds). Another mode of criticizing ProCD is to call it, pejoratively one would suppose, an Easterbrook decision, implying that the court's opinion was the work of one rogue judge. Both ProCD and the Gateway case that followed, were unanimous opinions of the court, neither of which the 7th Circuit reconsidered en banc. See Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997).

19. See Joel Rothstein Wolfson, Contracts and Copyright are not at War: A Reply to "The Metamorphosis of Contract into Expand," 87 CALIF. L. REV. 79 (forthcoming 1999).

20. In Article 2B nomenclature, many of these contracts would be called "Access Contracts" rather than "Mass Market Licenses," although they are every bit mass market licenses in the normal sense of the term. Article 2B distinguishes between the two types of contracts so that the statute can apply context-specific rules to access contracts. Compare U.C.C. 2B-102(1) (July 24-31, 1998 Draft), with U.C.C. 2B-102(31) (July 24-31, 1998 Draft) and see U.C.C. 2B-102, Reporter's Note 28 (July 24-31, 1998 Draft).

21. See supra note 11.

22. See Consumer Net, Consumer Net Rules of Operation (visited Sept. 17, 1998) <http://www.consumernet.org/html/online_rules.html>.

23. See supra note 12.

24. See Jim Matthews, BlitzMail (visited Nov. 5, 1998) <http://www.dartmouth.edu/pages/softdev/blitz.html>; Jim Matthews, Fetch-Licensing (visited Nov. 5, 1998) <http://www.dartmouth.edu/pages/softdev/fetch.html>.

25. See MIT Information Systems, MIT Information Systems (visited Nov. 5, 1998) <http://web.mit.edu/is/help/maczephyr/license.html>.

26. See Texas Classroom Teachers Association, TCTH Internet Site Disclaimer: Terms and Conditions (visited Sept. 17, 1998) <http://www.tcta.org/disclaimer.htm>.

27. See Shop PBS, Terms and Conditions for Use of Shop PBS (visited Sept. 17, 1998) <http://www.pbs.org/insidepbs/rules/shop.html>.

28. See supra note 10.

29. See The Robert Wood Johnson Foundation, Terms and Conditions of Use (visited Sept. 17, 1998) <http://www.rwjf.org/trmscon.htm>.

30. See The Partnership for Food Safety Education, Usage Guidelines (visited Sept. 17, 1998) <http://www.fightbac.org/word/guidelines.html>.

31. See National Pediatric Family HIV Resource Center, Terms and Conditions of Use: Liability Statement (visited Sept. 17, 1998) <http://www.pedhivaids.org/disclaimer.html>.

32. See National Institutes of Health Library, Copyright, Disclaimers and Access Restrictions (visited Sept. 17, 1998) <http://libwww.ncrr.nih.gov/disclaim.html>.

33. See, AM. J. KIDNEY DISEASES, Terms and Conditions of Use (visited Sept. 17, 1998) <http://www.ajkdjournal.org/terms.html>.

34. See Solomon R. Guggenheim Museum, Internet Legal Page (visited Sept. 17, 1998) <http://www.guggenheim.org/legal.html>.

35. See The State Bar of Wisconsin, State Bar of Wisconsin Web Site: Terms, Conditions and Disclaimers (visited Sept. 17, 1998) <http://www.wisbar.org/gendisclaimer.html>.

36. See First Baptist Church, Legal Information (visited Sept. 17, 1998) <http://www.firstb.org/copyright.html>.

37. See Catholic Online, Catholic Online WebMail/EdgeMail User Agreement (visited Nov. 5, 1998) <http://webmail.catholic.org/terms.htm>.

38. See RESTATEMENT (SECOND) OF CONTRACTS 211 cmt. A (1981).

39. See 3 CUNNINGHAM & JACOBSON, supra note 14, 559A(B).

40. Even publishers of market-leading products are susceptible to the wrath of end users in controversies over mass market license terms. See Gomulkiewicz & Williamson, supra note 4, at 345 n.40 (user objections to WordPerfect license); Micalyn Harris, Decloaking Development Contracts, 16 J. MARSHALL J. OF COMPUTER & INFO. LAW 403, 407 (1997) (user objections to Borland license); DAVID BRIN, THE TRANSPARENT SOCIETY 165-70 (1998) (explaining the potentially valuable effects of "flame mail").

41. See Lauren Paul, Tug-of-War-User Groups Leverage Clout to Influence Agreements, PC WK., Nov. 7, 1994, at 21-24. Librarians have established a website setting out their views on preferred terms and conditions for acquiring information products. See International Coalition of Library Consortia, Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information (visited Sept. 17, 1998) <http://www.library.yale.edu/consortia/statement.html>; Liblicense, Licensing Digital Information: a Resource for Librarians (visited Nov. 5, 1998) <www.library.yale.edu/~llicense/index.shtml>.

42. See GARTNER GROUP INTERACTIVE (visited Nov. 5, 1998) <http://gartner12.gartnerweb.com/public/static/home/home.html>.

43. See, e.g., Randy Weston, Microsoft profits from license changes (visited Nov. 5, 1998) <http://www.news.com/News/Item/0,4,26061,00.html?st.ne.ni.lh>.

44. See the Appendix to this Article, which sets forth a sampling of the rich assortment of license terms being offered today for software and information products.

45. See Gomulkiewicz & Williamson, supra note 4, at 352-56, 361-65.

46. See The Apache Group, Apache HTTP Server Project (visited Sept. 17, 1998) <http://www.apache.org>.

47. See Sendmail Consortium, Welcome to Sendmail.org (visited Sept. 17, 1998) <http://www.sendmail.org>.

48. See Robert Lemos, Linux maker lands big investors, ZDNN (visited Nov. 5, 1998) <http://www.msnbc.com/news/200767.asp>; Josh McHugh, Linux: the making of a global hack, FORBES (Aug. 10, 1998) <http://www.forbes.com/forbes/98/0810/6209094s1.html>; Glyn Moody, The Greatest OS that (N)ever Was, WIRED 5.08 (Aug. 1997) <http://www.wired.com.wired/5.08/linux.html>; Sebastian Rupely, Linux builds momentum, PC MAGAZINE (Sept. 15, 1998) <http://www.zdnet.com/zdnn/stories/zdnn_smgraph_display/0,4436,2137588,00.html>; Randy Weston, Linux gaining respect, CNET NEWS.COM (visited Nov. 5, 1998) <http://www.news.com/News/Item/0,4,24436,00.html?st.ne.ni.rel>.

49. See Eric S. Raymond, The Cathedral and the Bazaar (visited Feb. 4, 1998) <http://www.redhat.com/redhat/cathedral-bazaar/>; Eric S. Raymond, Homesteading the Noosphere (visited Aug. 15, 1998) <http://www.sagan.earthspace.net/esr/writings/homesteading/>.

50. See Josh McHugh, For the Love of Hacking: A Band of Rebels Think Software Should be as Free as the Air We Breathe, F ORBES, Aug. 10, 1998, at 94; Debian GNU/Linux, What Does Free Mean? or What Do You Mean By Open Software? (visited Nov. 5, 1998) <http://www.debian.org/intro/free>.

51. See generally Cem Kaner, A Bad Law For Bad Software (visited Sept. 10, 1998) <http://lwn.net/980507/a/ucc2b.html> [hereinafter Kaner, A Bad Law] (quoting a non-disclosure agreement for a McAfee anti-virus product: "The customers will not publish reviews of the product without prior consent from McAfee."); Cem Kaner, Bad Software: What to do When Software Fails (visited Nov. 23, 1998) <http://www.badsoftware.com/uccindex.htm> (highlighting objectionable license terms); Letter from Jean Braucher & Peter Linzer to Members of the American Law Institute (May 5, 1998), available at <http://www.ali.org/ali/Braucher.htm> (visited Nov. 22, 1998) (moving ALI to return Article 2B to the drafting committee for fundamental revision). Some license terms seem more reasonable than their critics might suggest when viewed in context, such as the terms for the Microsoft Agent software product. See Charles C. Mann, Who Will Own Your Next Good Idea, ATLANTIC MONTHLY, Sept. 1998, at 80 (criticizing the license for Microsoft Agent). The Agent software grants the user the right to use certain "cutesy" animated figures, which are copyrighted by Microsoft. These figures are akin to Mickey Mouse or Barney. You can be certain that Disney would never license a third party to use Mickey Mouse in a product in which Mickey says disparaging things about Disney. Cf. Deere & Co. v. MTD Prod.s, Inc., 41 F.3d 39 (2d Cir. 1994) (holding that an attempted parody of Deere's deer character constituted trademark dilution).

52. Customer satisfaction with software products is quite high. See, e.g., John Morris, Readers Rate Software & Support Satisfaction, PC MAG., July 1997, at 199 ("As in previous years, the results were generally positive. Most respondents give the products they use ratings of 8 or higher on a scale of 1 to 10 for satisfaction, and-with a few exceptions-give vendors solid ratings for technical support as well."); Peggy Watt, How Happy Are You...Really?, PC MAG., July 1993, at 311-12 ("Are customers satisfied? You Bet.").

53. See U.C.C. 2-302 (West 1989); U.C.C. 2B-110 (July 24-31, 1998 Draft); 1 E.A. F ARNSWORTH, FARNSWORTH ON CONTRACTS 4.28 (1990).

54. See RESTATEMENT (SECOND) OF CONTRACTS 206 (1981); 1 FARNSWORTH, supra note 53, 4.24.

55. See, e.g., DSC Communications v. DGI Techs., 81 F.3d 597 (5th Cir. 1996); Lasercomb v. Reynolds, 911 F. 2d 970 (4th Cir. 1990).

56. See generally Raymond T. Nimmer, Breaking Barriers: The Relation Between Contract and Intellectual Property Law 13 B ERKELEY TECH. L.J. 827 (1998).

57. See, e.g., Lemley, supra note 1, at 23; David A. Rice, Public Goods, Private Contract and Public Policy: Federal Preemption of Software License Prohibitions Against Reverse Engineering, 53 U. PITT. L. REV. 543 (1992).

58. For criticism of the private legislation theory, see Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. REV. 557, 607 n.226 (1998) (criticizing "private legislation" as a metaphor that tends to mislead); Richard Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL. L. REV. 1353, 1359 (1982). Contrary to the assumptions underlying the term "private legislation," contract diversity in mass market software licenses is rampant, and software publishers actively attempt to bring terms to the user's attention rather than burying them. See Gomulkiewicz & Williamson, supra note 4, at 348-50.

59. See Bell, supra note 58, at 591.

60. See infra Appendix of Selected License Terms; Gomulkiewicz & Williamson, supra note 4, at 352-56, 361-65. Another objection seems to be to license terms that prohibit reverse engineering or de-compiling software. While some may have philosophical objections to these terms, they have been standard industry practice for many years among companies of all sizes. Article 2B is not the proper place to resolve this debate-Article 2B should not dictate the enforceability of any given contract term, except an unconscionable or otherwise unenforceable one. In some cases, courts have upheld prohibitions on reverse engineering as reasonable, and in others, such as when the user's goal is merely to achieve interoperability, courts have refused to uphold them on various grounds. See, e.g., ProCD v. Zeidenberg, 86 F.3d 1447, 1454-55 (7th Cir. 1996) (enforcing prohibition on reverse engineering); DSC Communications v. DGI Techs., 81 F.3d 597 (5th Cir. 1996) (copyright misuse); Vault Corp. v. Quaid Software, 847 F.2d 255 (9th Cir. 1988) (preemption). In reality, reverse engineering is seldom critical to the innovation necessary to advance the state of the art for personal computer software. See Gomulkiewicz & Williamson, supra note 4, at 359 n.97. The feature set and other characteristics of a software product are readily ascertainable in the normal use of the product or via publicly available information. The information one can glean from de-compiling is of limited use in any event. See Andrew Johnson-Laird, Software Reverse Engineering in the Real World, 19 U. DAYTON L. REV. 843, 902 n.4 (1994); Pamela Samuelson et al., Symposium: A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308, 2336 n.90 (1994).

61. The software publisher holds the exclusive right to copy, create derivatives, distribute, and publicly perform or display its software. The end user can only acquire these rights by license, as users do in numerous mass market licenses. See infra Appendix of Selected License Terms.

62. See Pro CD, 86 F.3d at 1451 (discussing the inefficiencies of requiring a signature on every contract); RESTATEMENT (SECOND) OF CONTRACTS 211 cmt. A (1981) (describing the benefits of standard forms); 1 JOSEPH M. PERILLO, CORBIN ON CONTRACTS 1.4, at 13-15 (rev. ed. 1993) (noting that we could not function as a fast-paced, industrialized nation if every contract had to be negotiated); Gomulkiewicz & Williamson, supra note 4, at 341-56; Maureen A. O'Rourke, Drawing the Boundary Between Copyright and Contract: Copyright Preemption on Software License Terms, 45 DUKE L.J. 479, 495 (1995).

63. 1 FARNSWORTH, supra note 53, 4.26-27, at 478-95 (1990). Literally to require dickering would create the absurd result that in order to have an agreement you would first have to have a disagreement.

64. See U.C.C. 2-204 (West 1989); U.C.C. 2B-202 (July 24-31, 1998 Draft).

65. See Gomulkiewicz & Williamson, supra note 4, at 352-56, 361-65.

66. Ralph Nader's Consumer Technology Project has proposed that software "lemon laws" be passed in every state. See Consumer Project on Technology, Protest Page on: Uniform Commercial Code Article 2B (visited Sept. 17, 1998) <http://www.cptech.org/ucc/ucc/html>; Brian McWilliams, Venders' Right to Ship Buggy Software Under Fire, PC WORLD ONLINE (Mar. 25, 1998) (visited Nov. 23, 1998) <http://www.pcworld.com./news/daily/data/0398/980325081609.html>. But see supra note 52 (customer satisfaction with software products is quite high). Several bills have been introduced in Congress to invalidate contractual prohibitions on reverse engineering. See, e.g., Digital Era Copyright Enhancement Act, H.R. 3048, 105th Cong. (1997). The European Union has also passed legislation on this issue. See Council Directive 91/250/EEC of 14 May 1991 on the Legal Protection of Computer Programs, art. 6 (permitting reverse engineering in EC countries to obtain information to create interoperable products in certain cases and overriding any contrary contractual provision).

67. See Mary Jo Howard Dively & Donald A. Cohn, Treatment of Consumers Under Proposed U.C.C. Article 2B Licenses, 16 J. M ARSHALL J. COMPUTER & INFO. L. 315, 327-28, 334 (1997). Ms. Dively and Mr. Cohn are co-chairs of the ABA Section of Business Law Subcommittee on Information Licensing.

68. See U.C.C. 2B-111 (July 24-31, 1998 Draft) ("Manifesting Assent"); id. 2B-112 ("Opportunity To Review; Refund").

69. See id. 2B-208(a)(2).

70. See id. 2B-208(b)(1).

71. See id. 2B-208(b)(2)-(3).

72. Dively & Cohn, supra note 67, at 334.

73. See U.C.C. 2B-208, Reporter's Note 2 (July 24-31, 1998 Draft) (commenting that U.C.C. 2B-208 "is not limited to consumer transactions").

74. See id. U.C.C. 2B-401 ("Warranty and Obligation Concerning Quiet Enjoyment and Noninfringement"); id. 2B-403 ("Implied Warranty: Merchantability of Computer Program").

75. See Robert W. Gomulkiewicz, The Implied Warranty of Merchantability in Software Contracts: A Warranty No One Dares to Give and How to Change That, 16 J. MARSHALL J. COMPUTER & INFO. LAW 393 (1998); Jeffery C. Selman & Christopher S. Chen, Steering the Titanic Clear of the Iceberg: Saving the Sale of Software from the Perils of Warranties, 31 U.S.F. L. REV. 531 (1997); Edward G. Durney, Comment, The Warranty of Merchantability and Computer Software Contracts: A Square Peg Won't Fit in a Round Hole, 59 WASH. L. REV. 511 (1984).

76. See Cem Kaner & Robert W. Gomulkiewicz, Moving Toward a Usable Warranty of Merchantability, presented to the Article 2B Drafting Committee (May 31, 1997) (on file with author); Cem Kaner, Bad Software: What to do When Software Fails (visited Nov. 23, 1998) <http://www.badsoftware.com/uccindex.htm> ("Bob Gomulkiewicz (Microsoft's lawyer) and I worked together on the warranty of merchantability. Our goal was to write something that consumers could support and that Microsoft would actually be willing to offer. We succeeded.... The Committee chose not to vote on the proposal, even in the face of repeated advice that if they left the current implied warranty alone, no sane software publisher would provide it. The Committee chose not to vote on that compromise.").

77. This may be the case with respect to copyright infringement and trade secret misappropriation, but it is less true or simply not true with respect to patent infringement.

78. Paul J. Sleven of St. Martin's Press has made this observation at several drafting committee meetings in response to this author's observations about software industry trade practices concerning the warranty of non-infringement. In the book publishing industry, patents are seldom at issue.

79. Default rules can be varied by usage of trade, but the burdens involved with proving usage of trade in order to overcome a black letter law default rule give pause to the industry whose industry practice is not reflected in the black letter law. See U.C.C. 1-201(3), 1-205 (West 1989).

80. See U.C.C. 2B-308 (July 24-31, 1998 Draft).

81. See U.C.C. 2-309 (West 1989).

82. See COMPUTER DICTIONARY 324 (1991) ("Source code is human readable program statements written in a high-level or assembly language, as opposed to object code, which is derived from the source code and designed to be machine readable.").

83. U.C.C. 2B-308 (July 24-31, 1998 Draft).



86. See U.C.C. 2B-307(f)(2) (July 24-31, 1998 Draft).

87. The following license terms were collected from the license agreements accompanying various information products. The headings immediately preceding the quotes are provided by the author. Copies of the original license agreements are on file with the author.

88. The Artistic License is a form of "freeware" software license designed to encourage the distribution of source code and maintain the user's ability to modify the code. The most popular product distributed under the Artistic License is the scripting language Perl.

89. BSD-style licenses are another variation of a "freeware" license that allows free distribution of the source and object code of the program with few restrictions. This style of license is used for programs such as the Apache web server as well as various freeware versions of Unix. The BSD license requires that the copyright owner be listed in all advertising for distributed products using the licensed software. Modified-BSD licenses have dropped the advertising clause.

90. Many software programs are licensed under the GNU General Public License ("GPL") or the GNU Library General Public License ("LGPL"). Linux is perhaps the most popular and currently the most well known program licensed under these licenses. The intent of the GPL is that software should be "free" in the sense that everyone can use and modify the software as they like. If code licensed under the GPL is incorporated into software, then such software must also be licensed under the terms of the GPL. Thus, the license, through its terms and conditions, creates a system in which the source code of the software remains available to be copied, modified, and distributed by others.

91. Netscape has two license agreements that seek to cover all of its client and server software.

92. These two licenses, much like the GNU license, grant very broad rights to the user, but also require the user to license any modifications that the user makes under the same terms.

93. This product contains many low resolution images and 10 high resolution images in digital form.