Vol 7 No 1 - Roger Williams University School of Law

the international context), then the answer is no. My involvementin the drafting of UCITA for over fourteen years—from theinception of the idea until almost the end1—has undoubtedlyinfluenced both of my responses to the main question.It has also convinced me that the nature of the debatesurrounding UCITA needs to change. Over the two years sinceUCITA was promulgated by the National Conference ofCommissioners on Uniform State Laws, and indeed dating frombefore its enactment, there has been extensive opposition to theproject.2 Opponents of the legislation have raised concerns overthe adoption process (some concerns meritorious, others merereiterations of concerns without basis or repetition of old concernssince proven wrong), and in the bulk of states to date, thatopposition has led to the failure of UCITA to successfully navigatethe state legislative process or, in some cases, has led toenactment of anti-UCITA legislation.3 In the process, proponentsof the legislation have tried to negotiate compromises, askingopponents to identify those provisions on which there isdisagreement to see whether concerns could be addressed.4 Thus,1. I chaired the Ad Hoc Committee on Scope of the Uniform Commercial Code ofthe American Bar Association’s Section of Business Law, Uniform Commercial CodeCommittee, and in 1985 helped launch the initial study on software contracting underthe UCC. That group ultimately produced a report recommending statutory treatmentof software contracts, at which point I began working with the National Conference ofCommissioners on Uniform State Laws (NCCUSL) to study the potential of this newproject. When the Conference (along with its sister organization, the American LawInstitute) approved the creation of a Drafting Committee on software contracting, Iwas appointed to that committee as the American Law Institute representative andsimilarly served on the Drafting Committee to revise Uniform Commercial Code Article2. When the decision was made to split information/software licensing off from Article2, I continued on the Article 2 Drafting Committee and also served as the AmericanLaw Institute member of the Drafting Committee on Article 2B Licensing. I served inthat capacity until the Spring of 1999, when the American Law Institute withdrewfrom the process, and the project was retitled the “Uniform Computer InformationTransactions Act” (UCITA). At that time, I was asked to continue as an advisor on theproject, but declined to do so. Three months later the National Conference completedits work on UCITA. The complete text of the Act is available athttp://www.law.upenn.edu/bll/ulc/ucita/ucitsFinal00.htm. This article reflectsdevelopments through August 2001.2. See infra notes 18-28 and accompanying text. For a sampling of the depth andbreadth of the opposition, see http://www.4cite.org (last visited Nov. 10, 2001) andhttp://www.badsoftware.com (last visited Nov. 10, 2001).3. See infra note 19 and accompanying text.4. This led to the drafting of amendments to UCITA, but not to any extensiverevisions. The NCCUSL approved amendments to UCITA in 2000 and 2001, makingminor changes to section 103 (excluding motion picture industry), section 216 (adding