Before the UCC and the UCITA, what was one of the first, and most significant, of the U.S. government's attempts to promote uniformity in commercial laws from state to state?
The first Act of U.S. government in regulating commerce is the "Commerce Clause" of the U.S. Constitution, which provides Congress with authority to regulate not only business, but any "intercourse" conducted between parties situated in different States (Gibbons v. Ogden (1824)). This power extends to all "instrumentalities" of interstate commerce (telephone, highways, radio, waterways), as well as to intrastate conduct that has an aggregate and substantial effect on interstate commerce (agriculture, employment and housing discrimination).
Based on the information presented above, what do you see as the major differences between Article 2 of the Uniform Commercial Code and UCITA?
The UCC Article 2 is designed to facilitate the sale, shipment and delivery of tangible goods, i.e., movable personal property identified in a contract.
The UCITA is intended to facilitate the "licensing" of intangible computer-related intellectual property, with an emphasis on permitting owners of sofware the ability to maintain control over their intellectual property forever. In an ordinary sale, software, despite the presence of a "shrinkwrap" licensing contract, is considered the property of the buyer, after the transaction takes place, and the buyer is free to essentially ignore any portion of the agreement that prevents the buyer from exercising control over the software, including the right of resale.
What is the legal distinction between selling a product and licensing it?
A sale is a complete and final transfer from a seller to a buyer, of all right, title and interest in and to the property identified in the contract. A license is the right to use the property of another under certain ageed-upon terms and conditions.
Many of the provisions in the UCITA were first proposed as a modification to Article 2 of the UCC. Why do you think the drafters decided to propose it as a separate and distinct uniform act?
The UCITA is extremely controversial. It stands hundreds of years of contract law "on its head." The UCITA interferes with the U.S. Copyright Act by effectively limiting what is known as the "First Sale Doctrine," which permits a purchaser of a copy of the creative work of another, the right to resell that copy. To this extent, the UCITA may be unconstitutional.