Licenses and Information Wares: An Update on UCC Article 2B

Article excerpt

As our "information economy" has grown in recent years, some feel we have been caught in an information policy vacuum and we need to fill the void with new regulations and policies. For some issues triggered by emerging technologies that impression may hold true, but many of the fundamental policy questions raised by an information economy are not new. In 1644, in the early years of the printing press, John Milton wrote Areopagitica, an elegant statement extolling freedom of expression, in response to an order of England's Parliament that made it illegal to print books or pamphlets unless granted a license by the Crown or its agents. He wrote:

"Truth and Understanding are not such wares as to be monopolized and traded in by tickets and statutes and standards. We must not think to make a staple commodity of all the knowledge in the land, to mark and license it like broadcloth and our woolpacks. "

- John Milton, Areopagitica, 1644

In other words, information is not a toaster. Three hundred and fifty-four years after Milton's statement, our society continues to struggle to balance our treatment of information as merchandise with information as a community resource used to express, criticize, communicate, and learn.

Today, this struggle is perhaps best embodied in Article 2B of the Uniform Commercial Code, a state law currently under development that seeks to define the legal ground rules for transactions in information. This proposed law is occasionaly mentioned in the press when someone discusses "shrink-wrap licenses(1)." Article 2B represents a movement toward licensing of information in its many forms and away from the sale of copies of works as traditionally understood under copyright law. The legal distinctions involved with this shift are subtle on the surface, but have significant consequences for the way we access, use, and exchange information.

Article 2B, unlike most uniform law projects, has faced controversy from the start. Although uniform laws are intended to be "accurate not original," some feel that Article 2B is teetering dangerously in the direction of creating a new legal regime rather than merely codifying an existing one. The current draft of Article 2B was scrutinized over the summer and the primary concerns raised, in addition to the overarching question of whether widespread licensing of information is sound policy at all, involve the proper scope of the article, its intersection with federal policies, and the open arms it extends toward "shrink-wrap" and "click-wrap" licenses.

The Movement Toward a Licensing Regime

Before providing a more detailed description of Article 2B, let me offer a bird's eye view of the movement toward licensing of information and where Article 2B fits in the process. The current chapter in the information licensing story began in the early 1980s when copyrightability of software was in question. Software companies looked to contract law for help and forged a new, and still controversial, legal device affectionately known as the "shrink-wrap" license(2). At the time and still to this day, consumers and lawyers alike have not known quite what to make of this new form of contract and whether or not the terms embedded in these licenses should be enforceable.

Today, as a result of digital convergence, the proponents of shrink-wrap licenses include more than just software companies and the message is that licensing of information is a necessary reaction to the advances in digital technology and is a natural way to think about the distribution of information(3).

This is not a subtle change in attitude. The licensing model contrasts sharply with the world of books so familiar to us, in which a book is sold and so long as the user does not infringe the copyright (by making copies) the user is free to read the book, donate it to a library, write a book review of it, or use it as a doorstop. The constraints applicable to a book are those explicitly included in the copyright laws and are balanced by "fair use" and other doctrines that promote the flow of information and prevent overreaching by the copyright holders. …