Subject: Call for Hold on Article 2B
David Green (david@ninch.org)
Date: Fri, 17 Jul 1998 16:20:51 -0500
Message-Id: <v02130518b1d56ca485fe@[192.100.21.23]> Date: Fri, 17 Jul 1998 16:20:51 -0500 To: ninch-announce@cni.org From: david@ninch.org (David Green) Subject: Call for Hold on Article 2B
NINCH ANNOUNCEMENT
July 17, 1998
PRESS RELEASE ON RESULTS OF UC BERKELEY CONFERENCE ON ARTICLE 2B
<http://sims.berkeley.edu/BCLT/events/ucc2b/wrap-up.html>
Just as prospects for more user-friendly and more balanced federal digital
copyright legislation begin to look a little brighter, we are reminded that
the Uniform Commercial Code revisions, governing contract law, are still
looking quite bleak, especially with regard to the future of fair use in
the digital environment.
Below is a University of California, Berkeley, press release, part of the
"wrap-up" of the April conference held by the Berkeley Center for Law and
Technology on "Intellectual Property and Contract Law: The Impact of
Article 2B."
For background on UCC 2B, see the home page of the conference website:
<http://sims.berkeley.edu/BCLT/events/ucc2b/>
David Green
===========
>From: Ann Okerson <aokerson@pantheon.yale.edu>
>Subject: UCBerkeley press release about Article 2B
>To: liblicense-l@lists.yale.edu
>Date: Fri, 17 Jul 1998 12:21:21 -0400 (EDT)
>
>Of possible interest to readers of liblicense-l.
>
>FROM:
>Dan L. Burk
>Seton Hall University
>burkdanl@shu.edu
>---------------------------
>
>*****************************************************************************
>
>7/16/98
>File #14802
>
>UC Berkeley experts call for
>immediate hold on proposed legislation
>to regulate information commerce
>
>FOR IMMEDIATE RELEASE
>
> Berkeley - A "dangerously ill-conceived law" to regulate all
>transactions in information is hurtling toward enactment despite the
>enormous legal tangles it will cause, say UC Berkeley experts, who are
>calling for another look at the legislation before it is approved.
>
> If the proposed Article 2B of the Uniform Commercial Code "is
>enacted by state legislatures over the next six months, it would be a
>disaster," said Professor Pamela Samuelson of the University of
>California, Berkeley. She said it could affect everything from whether
>book publishers take a cue from software developers and start "shrink
>wrapping" books to restrict sharing to whether Internet robots can make
>legally binding contracts for computer users who unleash them.
>
> Despite the awesome breadth of the proposed legislation and the
>need to consider its implications, "drafters of this 'model' law intend
>to push forward as hard and as fast as they can to get approval so that
>states will begin enacting it as soon as this fall," Samuelson said.
>
> A key vote on the fate of the proposed law will be held July
>24-31 at the meeting of the National Conference of Commissioners of
>Uniform State Laws (NCCUSL) in Cleveland, Ohio. They intend to discuss
>and vote on the text of 2B section-by-section. Samuelson and many other
>experts hope NCCUSL can be persuaded to slow down and take a hard look
>at Article 2B before giving the go ahead to any sections of the law.
>
> Article 2B proposes to regulate almost all transactions in
>information. It is a so-called "model law" that each state legislature
>can accept or reject. States usually adopt model laws put forward in
>the Uniform Commercial Code so that business transactions across state
>lines remain consistent.
>
> Among other effects, Article 2B could chill the "fair use"
>doctrine that the public and libraries depend on to share information.
>Like computer software, which is often packaged with the admonition that
>whoever breaks the seal is bound by the terms of an enclosed
>manufacturer's contract, so too books could be wrapped in cellophane and
>sold with all types of limitations.
>
> The buyer could even be "barred from passing the purchased copy
>onto a friend," according to a paper presented at a recent UC Berkeley
>conference by David Nimmer, Elliot Brown and Gary Frischling of the Los
>Angeles law firm Irell & Manella LLP. "Nor is there any reason that the
>publisher should stop there," the paper went on, pointing out the
>ridiculous breadth of the law as currently proposed. "It could likewise
>require the reader not to skip chapters, not to read any paragraph more
>than three times, not to reveal the surprise plot twists to family or
>acquaintances, and certainly not to quote in a book review the few
>paragraphs that the fair use doctrine would otherwise permit."
>
> People "have no idea how dramatically the relationship to
>information is going to change if and when Article 2B passes," said
>Professor Peter Lyman, former head of the UC Berkeley library system,
>one of the most distinguished research libraries in the country. "In
>fact, I doubt if libraries will continue to exist in their present
>form."
>
> At the recent conference organized by the Berkeley Center for
>Law and Technology and the Institute of Management, Innovation and
>Organization at UC Berkeley, those expressing doubts about whether
>Article 2B is the right set of rules for the sale of information
>included representatives from sectors as diverse as Silicon Valley law
>firms, major motion picture companies, top accounting firms, computer
>technology companies and the World Bank.
>
> But despite such intensifying concerns, "proponents of Article
>2B want it to be the commercial law of the global information economy,"
>said Samuelson, who holds a joint appointment with UC Berkeley's School
>of Information Management & Systems and the Boalt Hall School of Law.
>
> Others concerned with Article 2B include:
>
>* James Davis of Xerox's Palo Alto Research Center, who criticized
>Article 2B's validation of contracts by electronic agents, for instance
>authorizing Internet robots to enter into binding sales. He felt giving
>such contracts the nod was premature since Internet robot technology is
>at best only being tested.
>
>* Rochelle Dreyfuss of the New York University Law School said Article
>2B would affect U.S. innovation - a vital engine driving business
>entrepreneurship and economic growth - by discouraging information
>sharing.
>
>* Michelle Kane of Walt Disney Company said Article 2B was
>"software-centric" - written from the point of view of the software
>industry - and expressed dismay that concerns of the motion picture
>industry had been ignored by the drafting committee.
>
>* Matthew Lynde of Price Waterhouse, a major accounting and consulting
>firm whose clients would be greatly affected by Article 2B, was unable
>to take a position on Article 2B because the legislation was too
>complicated to determine its implications for Price Waterhouse.
>
>* Copyright scholars such as Jerome Reichman of Vanderbilt Law School
>and Charles McManis of Washington University argued forcefully for
>continuing "fair use" principles, which Article 2B possibly jeopardizes,
>as a way to maintain a balance between information provider and user
>interests.
>
> At a May 14 meeting in Washington, D.C., the American Law
>Institute, one of the two original sponsors of the Article 2B effort,
>decided the legislation needs work before it is ready for approval,
>raising many of same objections that surfaced at the Berkeley
>conference.
>
> The other sponsor of the legislation - the National Conference
>of Commissioners of Uniform State Laws, which meets this month - is
>under pressure to withhold approval, said Samuelson.
>
> However the chair of the Article 2B drafting committee, Carlyle
>Ring, continues to insist that the U.S. get on with adopting a model
>law on licensing information to ensure that its rules become the
>standard for the global information economy, said Samuelson.
>
> "What I want to see happen," said Samuelson, "is for Article 2B
>to be pared down to the bare minimum necessary to jump-start electronic
>commerce and then watch how that commerce develops before we put any
>more legislation in place."
>
> She cites Mark Lemley of the University of Texas Law School, who
>called for a moratorium on Article 2B until affected parties can study
>the draft, understand its meaning, and suggest revisions. Article 2B,
>Lemley said, should reflect existing commercial practice and not
>untested new rules that could prove unworkable.
>
>### Note:
>
>For further
>information, contact Pamela Samuelson at (510) 642-6775
><pam@sims.berkeley.edu>. Media contacts: Kathleen Scalise, (510)
>643-7741, <kms@uclink.berkeley.edu> or David Irons, (510) 642-2734,
><irons@haas.berkeley.edu>
>
>
>________________________________________
>
>David Irons
>AScribe / The Public Interest Newswire
>2680 Bancroft Way, Suite B-300
>Berkeley, CA 94704
>510-704-0200
>510-704-1245 fax
>
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