July 1998 - DRAFT (forthcoming in the California Law Review)
Just as the manufacturing economy needed a commercial law to regulate sales of goods in order to promote the growth of larger and more national markets, the information economy needs a standardized set of commercial law rules to regulate transactions in its principal commodity, namely, information. Article 2 of the Uniform Commercial Code (UCC) has achieved the former purpose (with some help from Article 2A which created rules for leases of goods), [2] and Article 2B is a recently drafted model law that aspires to achieve the latter purpose. [3] Article 2B may soon be submitted to state legislatures for enactment into law. [4] Future U.S. proposals for global electronic commerce rules may also be based on Article 2B of the UCC. [5] Article 2B may thus become the world's preeminent law regulating trade in the information economy.
The task of drafting a model law to govern all transactions in information is daunting for a number of reasons. One reason derives from the very broad array of industries that engage in information transactions, each of which has historically had different licensing practices and assumptions. [6] Among the transactions and industry sectors affected by Article 2B are, just to name a few, the licensing of computer software and of trade secrets, [7] contracts between writers and their publishers, [8] and database access agreements. [9] Finding common threads in these transactions from which to weave a set of uniform rules is a considerable challenge. Second, while some of the commerce that Article 2B will regulate occurs in mature markets, Article 2B will also apply to immature, emerging, and yet to be developed forms of electronic commerce in information. [10] The immaturity of these markets and of the information technologies that will enable them contributes to the difficulties of drafting an adaptable, technology-neutral set of rules. [11] Third, Article 2B must also successfully mesh with intellectual property law, itself a complex body of law which regulates many aspects of transactions in information.
Meshing these two bodies of law will not be easy, in part, because Article 2B contemplates enforcement of contractual restrictions in mass market transactions that would previously have been unenforceable either as a matter of contract or of intellectual property law. [12] The drafters of Article 2B recognize the potential for conflict between federal law and Article 2B licenses, and have announced a "neutral" stance about federal preemption issues. [13] Even if the predictions of some commercial law specialists that Article 2B will entirely displace intellectual property law [14] are not borne out, the impact of Article 2B on intellectual property law and transactions in information products and services is likely to be substantial. However, hundreds of years of regulating transactions in information has provided intellectual property law with some collective economic and social wisdom that UCC 2B drafters would do well to contemplate, especially as that wisdom relates to protecting societal interests in ongoing innovation.
Although Article 2B has been subjected to intense scrutiny in the hothouse of the drafting committee, relatively little work has been done to investigate the intersection of Article 2B with intellectual property law. [15] Recognizing the importance of successfully managing this intersection, the Berkeley Center for Law and Technology hosted a conference in late April 1998 to consider the implications of Article 2B of the UCC for intellectual property law, for commercial transactions in information, and for electronic commerce. [16] It featured presentations by intellectual property and commercial law scholars, economists, cutting-edge technologists, representatives of various information industries, and attorneys specializing in information industry transactions to speak about managing the intersection of Article 2B and intellectual property law and policy. [17]
The articles and comments presented in this volume, along with those in a companion volume of the Berkeley Technology Law Journal, [18] were presented at the Berkeley conference. The papers offer guidance for several audiences: the drafters of Article 2B as they refine their product for final approval and adoption into state law; state legislatures and courts as they consider and attempt to interpret Article 2B's provisions; policymakers attempting to build global consensus on contract rules for an information economy which is far less dependent on territorial bounds than was the manufacturing economy; and practicing lawyers dealing with the implications of Article 2B for their own and their clients' businesses. Here, then, is a brief synopsis of the themes and major contentions developed in these articles:
Contract and copyright law may have lived in harmony for centuries, but as David Nimmer, co-author of the well-known Nimmer copyright treatise, and his colleagues Elliot Brown and Gary Frischling assert in "The Metamorphosis of Contract Into Expand," [19] this "harmony is not the end of the symphony." [20] Contract law works best when it complements copyright law to enable successful exploitation of copyrights. Copyright doctrine often looks to contract law for answers to questions of copyright significance, such as who is an "employee" for purposes of determining ownership rights in an original work under copyright's work made for hire doctrine. [21] Nimmer praises Article 2B for addressing many commercially important questions on which prior licensing law has been regrettably silent. [22] However, he views Article 2B as "an unwelcome intermeddler" insofar as it aspires to protect the interests of copyright proprietors and insofar as it enables licensors to disrupt the "delicate balance" long embodied in copyright law. [23]
Nimmer's quarrel is not so much about the enforceability of mass-market shrinkwrap licenses as a matter of state contract law (although he notes that several federal cases have refused to enforce license restrictions of the sort Article 2B would ratify [24] ). Rather, it is with the drafters' indifference about the prospect that mass-market licenses will be used to undermine user rights and other copyright policies. Nimmer also questions whether the drafters of Article 2B are really as neutral on the subject of federal preemption as they profess. [25] "[T]he draft," he says, "is only `neutral' where it chooses to be." [26] Article 2B's selective neutrality "suffers from the same shortcoming of political neutrality in response to real- world conflict. De facto, it favors those with concentrated interests and large financial resources and thus tacitly invites abuses." [27] Given that Article 2B already makes difficult policy choices about other important issues, Nimmer asks why it should it also say something substantive with respect to federal intellectual property policy preemption. [28]
Nimmer also takes aim at the chief precedent upon which the anti-preemptionists among Article 2B's proponents will rely, namely, Judge Frank Easterbrook's analysis of copyright preemption in the Pro-CD, Inc. v. Zeidenberg case. [29] Judge Easterbrook regarded Zeidenberg as having agreed to abide by the "home use" restriction in the license accompanying the CD-ROM of telephone directory listings he purchased. In Judge Easterbrook's view, breach of that agreement by uploading the listings to a website distinguished Pro-CD's contract claim against Zeidenberg from a copyright claim. [30] Nimmer argues that Judge Easterbrook not only misinterpreted the copyright preemption provision his opinion addresses, but also ignored another important line of copyright preemption cases. [31] Relying on the "conflict with federal purpose" preemption cases, Nimmer argues that federal preemption is the appropriate response to contracts that purport to recalibrate and defeat the copyright balance. He offers an analytical framework to help determine when contract terms should be preempted. [32]
As eloquent as Nimmer is in articulating this position, he would surely admit he was not the first copyright scholar to raise concerns about the potential of Article 2B to disrupt the copyright balance. An early champion of these concerns was Professor Charles McManis. In the spring of 1997, during an American Law Institute oversight meeting about Article 2B, McManis made a motion to recommend an amendment to the mass- market license provision to make clear that Article 2B licenses could not be used to override fair use or other specified copyright policy limitations on the rights of copyright owners. [33] In his comment on the Nimmer paper, McManis further elucidates his concerns about the phenomenon to which the title to his comment so pointedly hints "The Privatization (or `Shrinkwrapping') of American Copyright Law." [34] There is nothing in Article 2B, he notes, that would prevent book publishers and other content providers from using similar techniques as the Pro-CD shrinkwrap license to obtain waivers of fair use and other user rights under copyright law. McManis regards Article 2B as currently inviting copyright owners to "have their cake and eat it too" [35] at the expense of consumers, a result which McManis, like Nimmer, finds unacceptable.
In contrast, Joel Wolfson's comment, "Contracts and Copyright Are Not At War," although seemingly sympathetic to the impetus underlying both the Nimmer proposal and the McManis motion, criticizes both proposals for the unintended ill consequences they would have for some of today's leading information industries. [36] Wolfson, who is Associate General Counsel of the Nasdaq Stock Market, points out that much of the valuable information being traded in commerce consists of data that cannot be protected by copyright law in the aftermath of the Supreme Court's decision in Feist Publications, Inc. v. Rural Telephone Service Co. [37] Standard form contracts are the only way these firms can now protect their data from misappropriation. [38] In Wolfson's opinion, the Nimmer and McManis proposals would effectively nullify these non-negotiated contracts. [39] This would threaten the viability of these industries, especially given the inaction of Congress on the Collections of Information Anti-piracy Act [40] or similar legislation to adopt a European-inspired form of intellectual property protection for the contents of databases. [41] Wolfson also gives examples of situations in which it is reasonable for information providers to require licensees of their data to waive fair use rights. [42] If there is need for clarification about the supremacy of copyright policy regarding licenses of information under Article 2B, Wolfson suggests that this clarification should come from the United States Congress. [43] State contract law, he insists, is not the appropriate device by which to define the boundaries of federal copyright policy.
McManis contends that acceptance of his motion would not open the jaws of preemption as wide as Wolfson claims. [44] McManis points out that the U.S. Supreme Court has made clear that there are some domains in which state laws can protect information and information products. [45] Others are off-limits either because Congress has acted in a manner that leaves no room for states to act in that arena or because a particular state action would interfere with Congressional objectives. [46] McManis says that licenses about uses of information, such as those with which Wolfson is concerned, would be "arguably unaffected" if the substance of his ALI motion became part of the mass- market license provision of Article 2B. [47]
McManis also disputes Wolfson's contention that the copyright policy issues must be left entirely to Congress. [48] With or without amendments to Article 2B such as that proposed in the McManis motion, state legislatures considering Article 2B will be in the thicket of copyright policy making. Moreover, state courts will be unable to avoid this thicket because disputes between licensors and licensees will present them directly. In view of this, McManis argues that Article 2B's drafters should provide some guidance regarding their views about the relationship of 2B to copyright law and policy.
While Nimmer, Wolfson, and McManis anticipate that bulk of the action about this complex contract/intellectual property relationship will arise in the context of preemption challenges to enforcement of contracts, Professor Mark Lemley asserts that it will be necessary to go, as the title of his article evocatively indicates, "Beyond Preemption." [49] Lemley points out that some forms of intellectual property protection encompassed by Article 2B, notably trade secrecy law, derive from state, rather than federal, law. Since preemption arises only where there is a conflict between state and federal law, it provides no answers to conflicts between one state law and another. [50] Even within the body of federal caselaw, there are several discrete types of preemption. Only copyright law has an explicit statutory provision on preemption, [51] and the vagaries of court interpretations of that provision are troublesome. [52] Succinctly put, federal preemption of state law on intellectual property law and policy grounds is "a mess." [53]
Although Lemley expects caselaw to develop on Article 2B preemption issues, he does not think that preemption should be the sole point of intersection between Article 2B and intellectual property law and policy. He undertakes an exploration of other doctrines that might be used to challenge Article 2B licensing terms and to inject policy balances similar to the ones that now occur in intellectual property cases. [54] Among the most promising of these is the doctrine of misuse which has evolved over many decades as a way to stop owners of intellectual property rights from leveraging their government- granted monopoly rights in a manner that allows them to acquire unjustifiable advantages in dealings with customers or competitors. [55] The misuse doctrine has been successfully applied in cases involving licensing of both patents and copyright, [56] which augurs well for adapting it to the task of deterring overreaching by licensors.
Like Nimmer and McManis, Lemley expects intellectual property policy in relation to Article 2B licenses to take on the flavor of a consumer protection statute. [57] At least as important, however, is the need for intellectual property policy to play a role in ensuring that Article 2B licenses provide adequate breathing room for follow-on innovation. [58] A contractual waiver of the right to reverse-engineer a mass-marketed information product may seem to be of little interest to the ordinary consumer. However, in the long run, consumers will suffer if no one can reverse-engineer existing products or use the fruits of such knowledge to develop new products. [59] "[I]ntellectual property rules may not be pretty," Lemley says, "but they are at least an effort to arrive at the right balance of incentives, an effort that would never even be made were we to leave social ordering entirely in the hands of private parties." [60]
Professor Rochelle Dreyfuss raises very similar concerns about Article 2B's impact on the innovation policy underlying trade secrecy law in her article "Do You Want To Know a Trade Secret? Licensing under Article 2B of the Uniform Commercial Code." [61] Dreyfuss observes that Article 2B's "concentration on exploitation leads to a somewhat cavalier dismissal of `upstream' (i.e., creative) issues.[and] may frustrate [] innovation by undermining a core federal premise, which is that information `leaks;' that it flows inevitably into the domain of the public." [62] She suggests that this is as important in the context of trade secrecy law as in the federal context of patent and copyright law. Like Nimmer, Dreyfuss sees value in the Article 2B project insofar as it augments intellectual property rules, although she seems more sanguine than Nimmer about Article 2B taking on similar functions to intellectual property law. [63] Indeed, she believes that Article 2B may help to fill a gap in the existing framework of intellectual property law which currently underprotects investments in subpatentable and subcopyrightable informational works, such as the commercially valuable Nasdaq data about which Joel Wolfson expresses concern. [64] The prospect of Article 2B being used to fill this gap does not make Dreyfuss uncomfortable as long as it does not choke off the ongoing process of innovation. [65]
Dreyfuss expresses other concerns about Article 2B's implications for trade secrecy licensing. If patent licensing involves sufficiently different assumptions and practices from other licensing as to warrant an exception from the scope of Article 2B, Dreyfuss asks why this is not equally true for trade secrecy licensing. [66] She notes that although virtually all trade secrecy licensing will be covered by Article 2B, the text of Article 2B adopts some rules that make no sense in relation to trade secrets, such as requiring licensors to provide refund rights to licensees under some conditions. [67] Article 2B also invents a new vocabulary and introduces several key distinctions that will be unfamiliar and potentially troubling to trade secret licensing specialists. [68] Moreover, the most central term of Article 2B--"information"--is defined in a manner that conflates concepts that in trade secrecy and other intellectual property laws have distinct meanings. [69] Dreyfuss also observes that the explanatory notes to Article 2B contain curiously few references to trade secrecy statutes and cases involving trade secrecy licensing. [70] She attributes the relative deafness of Article 2B to the sensitivities of trade secrecy law to the relatively late inclusion of trade secrecy licensing in the Article 2B drafting process. [71]
While intellectual property lawyers tend to focus exclusively on how the law in which they specialize affects incentives to invest in socially desirable information products and services, it is clear from Professor Peter Alces' article, "W(h)ither Warranty: The B(l)oom of Products Liability Theory in Cases of Deficient Software Design," that investment incentives depend on much more than intellectual property laws. [72] Among the other rules that affect investment incentives are those that set standards for the quality of information products, such as the software warranty rules proposed in Article 2B. [73] Setting very high warranty standards may deter investments in products or services because the risks of liability may be too great in relation to the rewards available if one's product or service appeals to customers. [74] Even though setting very low warranty standards may initially encourage firms to invest in development of a product or service, in the long run, it can harm market growth if consumers have too little faith in products or services purveyed by firms that are unwilling to stand behind these products or services. So, as with intellectual property law, when designing warranty standards one must find a "delicate balance" so that there is sufficient incentive to induce developer investment on the supply side, but enough quality assurance to induce consumer investments on the demand side.
Alces observes that finding such a balance is easier when legislation is "bilateral," that is, when relatively large and sophisticated players routinely participate in both sides of the transactions being regulated (e.g., because Ford Motor Co. is a buyer of goods as often as it is a seller, it will be in Ford's interests to ensure that the rules affecting buyers and sellers are balanced). [75] Article 2B appears to Alces to be more "unilateral" in character, that is, more favorable to licensors of information and thus biased towards lower warranty standards which the industry participants perceive to be in their interests. [76] He pointedly observes that "[c]hange in the law for the sake of personal or corporate gain is not law reform in the best sense." [77]
Much of Alces' paper explains why raising the warranty standards of Article 2B in relation to computer software is desirable both from the standpoint of society and from the standpoint of the software industry. He warns that if Article 2B does not adequately protect licensee interests in reasonable levels of quality, products liability law will likely grow to respond to licensee concerns, citing historical analogues to prove his point. [78] For example, a firm that suffers grievous losses on account of the failure of "millenium bug" (i.e., year 2000 problem) detection software is unlikely to accept sole responsibility for the losses. If a warranty claim against the licensor appeared difficult to sustain, such a firm will look to product liability law to obtain a fair recovery. [79] Alces explains why such a claim might succeed. In view of this, "the efforts of the drafters of Article 2B to insulate licensors from liability may well backfire." [80]
Other significant impacts of Article 2B on information commerce are explored in the companion volume to this symposium which is being published by the Berkeley Technology Law Journal. [81] The BTLJ volume includes several papers and comments that were also presented at the Berkeley conference. Among the highlights of that volume are: "Breaking Barriers: The Relation Between Contract and Intellectual Property Law," [82] which explains the views of Professor Raymond T. Nimmer, Article 2B's Reporter, about the commercial importance of Article 2B licenses as a way to promote online commerce in information and about preemption and other federal policy intersection issues; "Authors As `Licensors' of `Informational Property Rights' Under UCC Article 2B," [83] by Professor Jane C. Ginsburg, discussing some "good news" and some "bad news" for authors in the licensing of their intellectual property rights to publishers; "Tales That Article 2B Tells About Its Connection With Copyright," [84] by Professor Jessica Litman, which finds Article 2B "confusing and confused" about copyright and its relationship with that law; "Copyright and the Jurisprudence of Self-Help," [85] by Professor Julie E. Cohen, which asserts that copyright policy should limit the extent to which licensors can use technical protection systems to enforce licenses; "Free Contracting, Fair Competition, and Draft Article 2B: Some Reflections on Federal Competition Policy, Information Transactions, and `Aggressive Neutrality,'" [86] by David F. McGowan, which examines Article 2B from the standpoint of federal antitrust policy; and "2B As Legal Software for Electronic Contracting-Operating System or Trojan Horse?," [87] by Professor Michael Froomkin, which considers the technological ripeness of the infrastructure for electronic commerce for Article 2B's regulations.
Together, these volumes provide a rich set of reflections on the implications both for intellectual property and for contract law arising from the emergence of new forms of commerce in information and new means by which to distribute it. Article 2B will not be alone in responding to the challenges of the new information economy. Intellectual property law and policy will be an integral part of the mix. Both bodies of law can and must work together if the potential of the information economy is to be achieved.
* [1] Professor of Law and of Information Management, University of California at Berkeley. I wish to give special thanks to Laurel Jamtgaard, Mark A. Lemley, and Pat Murphy for their critically important roles in organizing the conference on which this written symposium is based. I am also deeply grateful to the John and Mary R. Markle Foundation and to Wilson, Sonsini, Goodrich and Rosati for their generous support of the conference, to speakers at the conference who provided so much food for thought, to the volunteers who did so much to get out information about the conference and otherwise to make the event go smoothly, to the editors of the California Law Review and the Berkeley Technology Law Journal for their cooperation and support of the conference and for making the written symposium a product that we can all be proud of. I also wish to thank my research assistant Peter Huang for his invaluable assistance in preparing this foreword. Back to Text.
[2] See generally U.C.C. 2; U.C.C. 2A. See also Raymond T. Nimmer, UCC Revisions: Article 2 in the Information Age, 416 PLI/Pat 1005 (1995) ("Article 2 of the Uniform Commercial Code (UCC) comprises the basic and most influential contract law of our country"). Back to Text.
[3] See U.C.C. 2B (Draft), preface (latest draft June 15, 1998) (UCC-2B is currently being considered for final approval by the National Conference of Commissioners on Uniform State Laws). Back to Text.
[4] As of this writing, neither the National Conference of Commissioners on Uniform State Laws and the American Law Institute have formally approved a UCC2B draft. See generally Geoffrey C. Hazard, Jr., Letter to the Presidents of NCCUSL and ALI (visited June 12, 1998) (letter indicating the need for substantial refinements to 2B before ALI will approve it). Back to Text.
[5] See The Framework for Global Electronic Commerce (visited June 12, 1998) . Back to Text.
[6] See U.C.C. 2A-103(d)(2) and Reporter's Note 5b to 103. (draft) (exemptions for patent and trademark licensing and Reporter's notes saying why). Back to Text.
[7] See Rochelle Cooper Dreyfuss, Do You Want to Know a Trade Secret? Licensing Under Article 2B of the Uniform Commercial Code, _ CALIF. L. REV. _ (1998). Back to Text.
[8] See Jane C. Ginsburg, Authors as 'Licensors' of Informational Property Rights' Under UCC Article 2B, (April 24, 1998) (paper presented to the Berkeley Center for Law and Technology's UCC2B conference). Back to Text.
[9] See Joel Wolfson, Contracts and Copyright are Not at War: A Reply to "The Metamorphosis of Contract Into Expand, _ CALIF. L. REV. _ (1998). Back to Text.
[10] See Michael Froomkin, 2B as Legal Software for Electronic Contracting -- Operating System or Trojan Horse?, _ BERKELEY TECH. L.J. _ (1998). Back to Text.
[11] Article 2B, for example, anticipates marketplaces in which electronic agents representing prospective licensors and licensees of information will meet in cyberspace and by exchange messages on acceptable terms and conditions proposes rules form enforceable contracts. See UCC2B, supra note 2, at 2B-204. Back to Text.
[12] See, e.g., Mark A. Lemley, Beyond Preemption: The Federal Law and Policy of Intellectual Property Licensing, _ CALIF. L. REV. _ (1998). Back to Text.
[13] UCC2B, sec. 2B-105; see also Niva Elkin- Koren, Copyright Policy and the Limits of Freedom of Contract, 12 BERKELEY TECH. L.J. 93 (1997); Robert P. Merges, The End of Friction? Property Rights and Contract in the "Newtonian" World of On-Line Commerce, 12 BERKELEY TECH. L.J. 115 (1997). Back to Text.
[14] Maureen A. O'Rourke, Copyright Preemption After the ProCD Case: A Market-based Approach, 12 BERKELEY TECH. L.J. 53 (1997). Back to TEXT.
[15] See, e.g., id.; Mark A. Lemley, Intellectual Property and Shrink-wrap Licenses, 65 S. CAL. L. REV. 1239 (1995). Back to Text.
[16] The following organizations were co-sponsors of the Berkeley conference: the American Law Institute, the Information Technology Association of America, Continuing Legal Education of the Bar of California, and The Business and Law Section of the California State Bar Association, along with the School of Information Management and Systems, University of California at Berkeley, the Institute of Management, Innovation, and Organization of the Haas School of Business, UC Berkeley, and the Fisher Center for Management and Information Technology, Haas School of Business, UC Berkeley. Back to Text.
[17] See http://www.sims.berkeley.edu/bclt/events/ucc2b/. Back to Text.
[18] See volume --, Berkeley Technology Law Journal (forthcoming 1998). Back to Text.
[19] David Nimmer, Elliot Brown, & Gary Frischling, The Metamorphosis of Contract Into Expand, _ CALIF. L. REV. _ (1998). For the sake of simplicity, the text will refer to Nimmer alone. Back to Text.
[20] Id. at [3]. [Pincites refer to the page numbers of the papers included in the Berkeley Conference packet] Back to Text.
[21] See id. at [6]. Back to Text.
[24] Id. at [25]. Back to Text.
[25] Id. at [48-51]. Back to Text.
[26] Id. at [50]. Back to Text.
[28] Id. at [49-50]. Back to Text.
[29] 86 F.3d 1447 (1996). Back to Text.
[30] See id. At 1454-55. Back to Text.
[31] Nimmer, supra note 18, at 25-26. Back to Text.
[32] Id. at 42-48. Back to Text.
[33] See Charles R. McManis, The Privatization (or "Shrink-wrapping") of American Copyright Law, _ CALIF. L. REV. _ , [4-5] (1998). Back to Text.
[34] Id. at [5-13]. Back to Text.
[35] Id. at [3]. Back to Text.
[36] Wolfson, supra note 8. Back to Text.
[37] 499 U.S. 340 (1991). Back to Text.
[38] Wolfson, supra note 8, at [7-8]. Back to Text.
[39] Id. at [2-5]. Back to Text.
[40] HR 2652, 105th Cong. (1998) (passed House, but no bill in Senate yet). Back to Text.
[41] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, 1996 O.J. (L77) 20; cf. J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 Vand. L. Rev. 51 (1997) (critical of the EU directive) and Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U Cinn. L. Rev. 151 (1997) (arguing in favor of an approach like that adopted in the EU). Back to Text.
[42] Wolfson, supra note 8, at [6-12]. Back to Text.
[43] Id. at [22-23]. Back to Text.
[44] McManis, supra note 32, at [5-6]. Back to Text.
[45] See, e.g., Goldstein v. California, 412 U.S. 546 (1973) (upholding state sound recording anti-piracy legislation); Aronson v. Quick Point Pencil, 440 U.S. 257 (1979) (contract to pay royalties enforced even though patent subsequently held invalid). Back to Text.
[46] See, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) (striking down Florida "plug mold" statute). Back to Text.
[47] McManis, supra note 32, at [5-7]. Back to Text.
[48] Id. at [7-10]. Back to Text.
[49] Lemley, supra note 11. Back to Text.
[50] See Id. at [22]. Back to Text.
[51] 17 U.S.C. sec. 301. Back to Text.
[52] See, e.g., Lemley, supra note 11, at [17-20] (discussing cases). Back to Text.
[53] Id. at [2]. Back to Text.
[54] Id. at [25]. Back to Text.
[56] Id. at [26-30] (discussing cases). Back to Text.
[57] Id. at [40-41]; see also Julie Cohen, Copyright and the Jurisprudence of Self-help, _ BERKELEY TECH. L.J. _ (1998) (invoking copyright policy as a limitation on the use of technical means of enforcing contracts). Back to Text.
[58] Lemley, supra note 11, at [39]. Back to Text.
[60] Id. at [40]. Back to Text.
[61] Dreyfuss, supra note 6. Back to Text.
[62] Id. at [5]. Back to Text.
[63] Id. at [32]. Back to Text.
[64] Id. at [55-56]. See also Rochelle C. Dreyfuss, A Wiseguy's Approach to Information Products: Muscling Copyright and Patent Into a Unitary Theory of Intellectual Property, 1992 SUP. CT. REV. 195 (1992); J.H. Reichman, Legal Hybrids Between the Patent and Copyright Paradigms, 94 COLUM. L. REV. 2432 (1994); Pamela Samuelson et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308 (1994). Back to Text.
[65] Dreyfuss, supra note 6, at [61]. Back to Text.
[67] Id. at [18]. Back to Text.
[68] Id. at [7-14]. Back to Text.
[69] Id. at [12-14] (discussing "information"). Back to Text.
[70] Id. at [6]. Back to Text.
[71] Id. at [3-4]. Back to Text.
[72] _ CALIF. L. REV. _ (1998). Back to Text.
[73] UCC2B, supra note --, Part 4. Back to Text.
[74] The points made in this paragraph were more clearly set forth in Professor Alces' oral presentation at the Berkeley conference than in his written text. Remarks of Peter Alces, April 25, 1998, Berkeley CA. Back to Text.
[75] See Alces, supra, note 71, at [20]. Back to Text.
[76] See id. at [21]. Back to Text.
[77] Id. at [22]. Back to Text.
[78] See Id. at [24-25] Back to Text.
[79] See id. at [27]. Alces does a nice job explaining how software defect cases are likely to be analyzed in product liability terms. Product liability law may have evolved in the context of manufacturing industries. But that does not mean it cannot be adapted to deal with software. Id. at [27-28]. Back to Text.
[80] Id. at [30]. Back to Text.
[81] In a spirit of admirable cooperation, articles editors from both the California Law Review and the Berkeley Technology Law Journal met for a discussion and negotiation on the allocation of papers and comments as between the two journals. The principal criteria for allocation were thematic congruence and the degree of completion of the articles (CLR had a more time-intensive process and had to complete several stages of their process by May). I am deeply grateful to both the editorial boards of these journals and to the authors of the articles and comments for their dedication to making the written symposium as much of a success as the live symposium. Back to Text.
[82] _ BERKELEY TECH. L.J. _ (1998). Back to Text.
[83] Ginsburg, supra, note 7. Back to Text.
[84] _ BERKELEY TECH. L.J. _ (1998). Back to Text.
[85] Cohen, supra, note 56. Back to Text.
[86] _ BERKELEY TECH. L.J. _ (1998). Back to Text.
[87] Froomkin, supra, note 9. Back to Text.
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