Vol 7 No 1 - Roger Williams University School of Law

similarities as well as differences between information and goodscontracts) is frequently overlooked in the literature proclaimingthe need for an entirely separate body of information law.14Third, the critical decision to separate goods from softwareand information during the drafting process was not, as somehave portrayed, the result of a determination that contract issuessurrounding the licensing of information were so distinct fromthose involving the sale of goods that a different body of ruleswere required. By 1995, the drafting committee originallycharged with responsibility in the field was prepared torecommend a “hub-and-spoke” treatment for goods andinformation. A central core of basic contracting principlesgoverning all transactions (sales, leases, licenses and possiblyother transactions such as services) would be combined withspecific rules where needed. Nonetheless, in 1995 the leadershipof the National Conference of Commissioners on Uniform StateLaws made the surprising announcement that it was abandoningattempts to treat software within Article 2, and was insteadcreating a new Drafting Committee (the Article 2B DraftingCommittee) with a new reporter to draft a new statute on thelicensing of information.15 This split was not justified on thegrounds that information and software were significantlydifferent, but rather on the basis that the logistics of restructuringArticle 2 into a hub with spokes would require extraordinary timeand resources.My perception is that an additional, unarticulated motive wassurely behind this surprising decision. As long as sales andsoftware were being handled by the same Drafting Committee,14. See, e.g., Nimmer, Looking Glass, supra note 9. Professor Nimmer examinesthe cases struggling with which law (Article 2 or common law) to apply to informationtransactions, but often fails to examine why the question is important. Asking whetherthe licensing of information is the same as, or different from, the sale of goods is thesame as asking “is the glass half empty or half full.” The answer is “it depends.” If oneis in need of a drink, the salient fact is that there is something in the glass (it is halffull); if the question is whether to refill the glass, the salient fact is that it is halfempty. In the context of UCITA, the question is not whether licensing of information isdifferent than sales of goods, but whether those differences in the transactions justify adifference in the applicable legal rule.15. It is noteworthy that this important step was taken by the leadership of theNCCUSL with minimal input from its partner in the Code revision process, theAmerican Law Institute, and with minimal input from the Chair, Reporter or DraftingCommittee on Article 2. For a diplomatic account of the failure of the hub-and-spokeapproach, see Speidel, Trenches, supra note 12, at 612-15.