II. ARTICLE 2B AND MASS MARKET LICENSES

Mass market licensing is not new. n13  Software companies have been using mass market licenses, and legal commentators have been writing about them, for decades. n14  The software industry is thriving in large part because of what mass market licenses enable: a diversity of innovative products provided to end users at attractive prices.  n15  For most software products, the license is the product; the computer program provides functionality to the user, but the license delivers the use rights. n16

The court's ruling in ProCD v. Zeidenberg n17  affirming the enforceability of mass market licenses may have surprised some legal scholars, but a contrary ruling would have devastated the software and electronic information industries. It is far better that the ProCD case merely provoked a few critical law review articles  n18 than forced a radical change in  the way software and information publishers do business. Without an effective contracting method to license software and electronic information to the mass market, the value and choice of products would have diminished significantly, and some companies would have had no viable products at all.  n19  Today, a wide variety of organizations employ standard form contracts to provide software and information to the mass market,  n20  including Consumers Union,  n21  Consumer Net,  n22  University of California at Berkeley,  n23  Dartmouth College,  n24  Massachusetts Institute of Technology,  n25  Texas Classroom Teachers Association,  n26  Public Broadcast Service,  n27  Free Software Foundation,  n28  The Robert Woods Johnson Foundation,  n29  The Partnership For Food Safety Education,  n30  National Pediatric And Family HIV Resource Center,  n31  National Institutes of Health Library,  n32  National Kidney Foundation,  n33  Guggenheim Museum,  n34  Wisconsin Bar Association,  n35  First Baptist Church (Rochester, MN),  n36  and Catholic Online Webmail.  n37

Standard form contracts are not only ubiquitous in modern commerce; they are also regarded as an efficient method of distribution under the Restatement (Second) of Contracts  n38  and universally upheld under Article 2 of the Uniform Commercial Code. n39  There are, to be sure, some important differences between mass market software licenses and standard form contracting in other industries, but those differences benefit licensees. First, licensors have a strong incentive to draw the user's attention to license terms and to get a manifestation of assent. If the user is not aware of the contours of the license or does not feel bound by them, the licensor (who must rely largely on self-policing in the mass market) cannot count on the user to abide by the license. Second, software users are not a docile lot. They are particularly unforgiving of companies that try to license software on unreasonable terms, and the Internet has given them a powerful tool to express their views. n40  Software end users have formed associations to monitor and influence software license terms. n41  Information industry research organizations, such as the Gartner Group, n42  as well as the trade press,  n43  keep a watchful eye on licensing practices, sounding the alarm when they see a change that they believe negatively affects end users.

Critics of mass market licensing try to paint a picture of software or information licensing as amounting to nothing more than a collection of me-too forms in which licenses simply mirror a copyright first sale. Nothing could be farther from the truth. Today's mass market licensing is characterized by contract variety and a variety of license terms.  n44   It is common for mass market licenses to provide users with more rights than the user would have acquired had the user simply bought a copy of the software, including reproduction, derivative works, and distribution rights. As new products have been developed and brought to market, such as multimedia software, client-server products, and web site "products," contract variety and customer choice have also flourished via mass market licensing.  n45

Innovative mass market licensing practices have played a key role in the success of many popular Internet products. The Netscape Navigator browser achieved early success because it permitted non-commercial users to freely use, copy, and distribute the software. Microsoft licenses free, unlimited copying and distribution of its Internet Explorer browser software. The Apache  n46  web server and the Sendmail  n47  e-mail router have become Internet standbys, and the Linux operating system has a strong following,  n48  based on "open source" licensing.  n49  Open source licensing is the practice of freely licensing the creation of derivative works and, in turn, requiring that the source code for these derivatives also be freely licensed for the creation of further derivatives. n50  Netscape has recently implemented a variant of open source code licensing for its Navigator and Communicator software.

Critics of mass market licenses also argue that such licenses must be regulated because a few mass market licenses contain objectionable terms, and more such terms could, in the future, find their way into mass market licenses.  n51  That argument is misguided. It is no more appropriate to judge mass market licenses by their worst clauses than it is to judge all of literature by tabloid journalism or trashy novels. Just as free speech does not deserve to be regulated because some speech is objectionable, so mass market licenses do not deserve to be regulated because some publishers use them as a vehicle for objectionable terms. Mass market licenses should be judged on the basis of the tremendous benefits they provide to software publishers and users, n52  not on the few provisions critics can find to ridicule. The market will punish those who employ harsh terms. Consumer protection laws and doctrines such as unconscionability, n53  construing contract terms against the drafter,  n54  and copyright misuse  n55  provide powerful checks as well.  n56

Other critics of mass market licenses worry about the theoretical costs of mass market licenses that are attributable to the effects of (to use their misnomer) "private legislation." n57  A critique of the "private legislation" theory is beyond the scope of this Article.  n58  Even if such costs really exist,  n59  however, they are far outweighed by the extraordinary costs that publishers and users alike could incur if Article 2B eliminates or overly encumbers mass market licensing.

Finally, critics complain that licenses can limit the user's ability to use the licensed software or information. That is, of course, true - indeed, it is the very essence of licensing. But it is overly simplistic, and usually wrong, to think that licenses are merely tools to take away rights.  n60  They are necessary to convey many affirmative rights as well. n61

Critiquing mass market licensing is interesting as an intellectual exercise, but what are the real alternatives for Article 2B? Four alternatives exist: (1) provide that contracts are enforceable only if negotiated and/or signed; (2) force publishers to base their transactions solely on background rules of intellectual property law, such as the first sale doctrine, rather than contract; (3) dictate the specific terms that may or may not be included in standard form contracts; and (4) give courts greater leeway to strike contract terms. These four alternatives are not practicable.

The transaction costs associated with requiring negotiation or a signature would be prohibitively high.  n62  For this reason, standard term contracts are the norm in today's economy, not the exception,  n63  and contract law does not generally require a signature to create a contract. Contracting parties have always had the flexibility to manifest assent in a variety of ways, from nodding their head, to shaking hands, to making an "X," to clicking an "I agree" button.  n64

Background rules of intellectual property, such as copyright's first sale doctrine, provide woefully inadequate transaction models for software and information products. A copyright first sale is, in effect, a one-size-fits-all transaction model. As I have described in detail elsewhere, forcing a software publisher to sell software like a newspaper or book does not permit the publisher to provide various packages of rights desired by end users at attractive price points. n65  If Article 2B constrains mass market software licensing, product prices will increase and product variety and choice will decrease.

If Article 2B dictates the specific terms which may or may not be in standard form software contracts, it will impinge on the important principles of freedom of contract and contract certainty. If Article 2B gives courts greater leeway to strike contract terms, it will likely freeze development of new contract forms, decrease contract certainty, and potentially increase litigation over licenses. Hence, these approaches should be pursued very cautiously. While there is a rightful place for some limits on freedom of contract, the better approach is to start by affirming the value of mass market licensing and then apply any regulation with care and precision. Regulation is always possible so long as those proposing it can convince lawmakers it is good public policy overall. n66

What is Article 2B doing about mass market licenses? End users should be cheering.  n67  Article 2B contains protections against hidden license terms; it requires an opportunity to review the terms and a manifestation of assent to the terms.  n68  Article 2B does not enforce mass market license terms that conflict with expressly agreed terms.  n69  Section 2B-208 conditions enforceability of mass market licenses on the giving of a refund when contract terms are presented to the user after payment. n70  It also allows the user to recover any costs associated with returning the software or for harm caused to the user's system in the event the user must install the software in order to view the terms of the mass market license.  n71  The addition of 2B-208 and other consumer protections to Article 2B prompted the co-chairs of the American Bar Association's Business Law Subcommittee on Information Licensing to observe: "The current draft of Article 2B affords more protections for consumers than any existing commercial statute." n72  Not only do consumers receive enhanced protections for software and information licensed via standard forms in the mass market, but also Article 2B takes the unprecedented step of applying many of these protections to businesses. n73
 
 

*Mr. Gomulkiewicz is a senior corporate attorney for Microsoft Corporation. He also chairs the Article 2B Working Group of the Business Software Alliance. The views expressed in this article are the personal views of the author, not those of Microsoft or the Business Software Alliance. The author would like to thank J.D. Fugate, Hosea Harvey, John Lange, Robert B. Mitchell, and Martin F. Smith for their contributions to this Article.

n13.Relatively new, however, are court decisions clearly articulating the value of mass market licensing. See Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997), cert. denied 118 S.Ct. 47 (1997) (upholding contract terms presented to the user post-payment in a mixed software and computer hardware transaction); ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); Hotmail v. Van$ Money Pie, Inc., 47 U.S.P.Q.2d 1020 (N.D. Cal. 1998) (assuming enforceability of mass market license); Arizona Retail Sys. v. Software Link, 831 F. Supp.759, 766 (D. Ariz. 1993) (holding a mass market license enforceable in the initial transaction between a value added reseller and a software publisher, but unenforceable in a subsequent transaction); Brower v. Gateway 2000, 676 N.Y.S.2d 569 (1998) (upholding contract terms presented to the user post-payment in a mixed software and computer hardware transaction). (return to text)

n14.Standard form contracts are not an innovation of software publishers. The use of standard form contracts is commonplace in virtually all lines of business. See 3 Lawrence A. Cunningham & Arthur J. Jacobson, Corbin on Contracts 559A(B) (rev. ed. Supp. 1998); 1 E. A. Farnsworth, Farnsworth on Contracts 4.26 (1990). Software publishers have been innovative, however, in the various ways they allow users to manifest assent to the terms. See Gomulkiewicz & Williamson, supra note4, at 339-41. Software publishers have also been unique in their efforts to actually draw contract terms to the user's attention and require manifestation of assent. Id. at 352. (return to text)

n15.See id. (return to text)

n16.See ProCD, 86 F.3d at 1453 ("In the end, the terms of the license are conceptually identical to the contents of the package."). The use of mass market licenses enables the publisher to tailor a collection of rights to particular types of uses, so that the license, rather than merely the underlying software, becomes the product acquired by the user. This practice has analogies to other industries, such as the airline industry. An airline ticket is nothing more than a right to ride on a given flight, in a certain class of seat, on a certain day and time, to a certain location. The ticket price and associated rights vary from passenger to passenger, depending on the ticket the passenger acquired. For example, one passenger in coach may have paid twice as much as the passenger sitting across the aisle, but the higher priced ticket may entitle the passenger to a confirmed seat on another flight in case the airline cancels the regularly scheduled flight. (return to text)

n17.86 F.3d 1447 (7th Cir. 1996). (return to text)

n18.See, e.g., Karjala, supra note 1; Apik Minassian, The Death of Copyright: Enforceability of Shrinkwrap Licensing Agreements, 45 UCLA L. Rev. 567 (1997); Kell Corrigan Mercer, Note, Consumer Shrink-Wrap Licenses and Public Domain Materials; Copyright Preemption and Uniform Commercial Code Validity in ProCD v. Zeidenberg, 30 Creighton L. Rev. 1287 (1997). Some commentators disparage the ProCD decision by saying that it has been severely criticized or that most commentators disagree with the court's opinion. See, e.g., David A. Rice, Memorandum to Article 2B Drafting Committee (Mar. 18, 1998) (on file with author) (Professor Rice is a member of the Article 2B Drafting Committee). This count-up-the-law-review-article method of evaluating ProCD is a poor basis to judge the merits of the decision. Most commentators write to critique cases, not to praise them, so seeing more criticism than accolades is normal in legal scholarship. Even at that, one might quarrel with whether particular articles are, on balance, supportive or critical. See Maureen A. O'Rourke, Copyright Preemption After the ProCD Case, a Market-Based Approach, 12 Berkeley Tech. L.J. 53 (1997) (agreeing with the court on contract grounds, while offering criticism on preemption grounds). Another mode of criticizing ProCD is to call it, pejoratively one would suppose, an Easterbrook decision, implying that the court's opinion was the work of one rogue judge. Both ProCD and the Gateway case that followed, were unanimous opinions of the court, neither of which the 7th Circuit reconsidered en banc. See Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997). (return to text)

n19.See Joel Rothstein Wolfson, Contracts and Copyright are not at War: A Reply to "The Metamorphosis of Contract into Expand," 87 Calif. L. Rev. 79 (forthcoming 1999). (return to text)

n20.In Article 2B nomenclature, many of these contracts would be called "Access Contracts" rather than "Mass Market Licenses," although they are every bit mass market licenses in the normal sense of the term. Article 2B distinguishes between the two types of contracts so that the statute can apply context-specific rules to access contracts. Compare U.C.C. 2B-102(1) (July 24-31, 1998 Draft), with U.C.C. 2B-102(31) (July 24-31, 1998 Draft) and see U.C.C. 2B-102, Reporter's Note 28 (July 24-31, 1998 Draft). (return to text)

n21.See supra note 11. (return to text)

n22.See Consumer Net, Consumer Net Rules of Operation (visited Sept. 17, 1998) <http://www.consumernet.org/html/online rules.html>. (return to text)

n23.See supra note 12. (return to text)

n24.See Jim Matthews, BlitzMail (visited Nov. 5, 1998) <http://www.dartmouth.edu/pages/softdev/blitz.html>; Jim Matthews, Fetch - Licensing (visited Nov. 5, 1998) <http://www.dartmouth.edu/pages/softdev/fetch.html>. (return to text)

n25.See MIT Information Systems, MIT Information Systems (visited Nov. 5, 1998) <http://web.mit.edu/is/help/maczephyr/license.html>. (return to text)

n26.See Texas Classroom Teachers Association, TCTH Internet Site Disclaimer: Terms and Conditions (visited Sept. 17, 1998) <http://www.tcta.org/disclaimer.htm>. (return to text)

n27.See Shop PBS, Terms and Conditions for Use of Shop PBS (visited Sept. 17, 1998) <http://www.pbs.org/insidepbs/rules/shop.html>. (return to text)

n28.See supra note 10. (return to text)

n29.See The Robert Wood Johnson Foundation, Terms and Conditions of Use (visited Sept. 17, 1998) <http://www.rwjf.org/trmscon.htm>. (return to text)

n30.See The Partnership for Food Safety Education, Usage Guidelines (visited Sept. 17, 1998) <http://www.fightbac.org/word/guidelines.html>. (return to text)

n31.See National Pediatric Family HIV Resource Center, Terms and Conditions of Use: Liability Statement (visited Sept. 17, 1998) <http://www.pedhivaids.org/disclaimer.html>. (return to text)

n32.See National Institutes of Health Library, Copyright, Disclaimers and Access Restrictions (visited Sept. 17, 1998) <http://libwww.ncrr.nih.gov/disclaim.html>. (return to text)

n33.See, Am. J. Kidney Diseases, Terms and Conditions of Use (visited Sept. 17, 1998) <http://www.ajkdjournal.org/terms.html>. (return to text)

n34.See Solomon R. Guggenheim Museum, Internet Legal Page (visited Sept. 17, 1998) <http://www.guggenheim.org/legal.html>. (return to text)

n35.See The State Bar of Wisconsin, State Bar of Wisconsin Web Site: Terms, Conditions and Disclaimers (visited Sept. 17, 1998) <http://www.wisbar.org/gendisclaimer.html>. (return to text)

n36.See First Baptist Church, Legal Information (visited Sept. 17, 1998) <http://www.firstb.org/copyright.html>. (return to text)

n37.See Catholic Online, Catholic Online WebMail/EdgeMail User Agreement (visited Nov. 5, 1998) <http://webmail.catholic.org/terms.htm>. (return to text)

n38.See Restatement (Second) of Contracts 211 cmt. A (1981). (return to text)

n39.See 3 Cunningham & Jacobson, supra note 14, 559A(B). (return to text)

n40.Even publishers of market-leading products are susceptible to the wrath of end users in controversies over mass market license terms. See Gomulkiewicz & Williamson, supra note 4, at 345 n.40 (user objections to WordPerfect license); Micalyn Harris, Decloaking Development Contracts, 16 J. Marshall J. of Computer & Info. Law 403, 407 (1997) (user objections to Borland license); David Brin, The Transparent Society 165-70 (1998) (explaining the potentially valuable effects of "flame mail"). (return to text)

n41.See Lauren Paul, Tug-of-War - User Groups Leverage Clout to Influence Agreements, PC Wk., Nov. 7, 1994, at 21-24. Librarians have established a website setting out their views on preferred terms and conditions for acquiring information products. See International Coalition of Library Consortia, Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information (visited Sept. 17, 1998) <http://www.library.yale.edu/consortia/statement.html>; Liblicense, Licensing Digital Information: a Resource for Librarians (visited Nov. 5, 1998) <www.library.yale.edu/llicense/index.shtml>. (return to text)

n42.See Gartner Group Interactive (visited Nov. 5, 1998) <http://gartner12.gartnerweb.com/public/static/home/home.html>. (return to text)

n43.See, e.g., Randy Weston, Microsoft profits from license changes (visited Nov. 5, 1998) <http://www.news.com/News/Item/0,4,26061,00.html?st.ne.ni.lh>. (return to text)

n44.See the Appendix to this Article, which sets forth a sampling of the rich assortment of license terms being offered today for software and information products.(return to text)

n45.See Gomulkiewicz & Williamson, supra note 4, at 352-56, 361-65. (return to text)

n46.See The Apache Group, Apache HTTP Server Project (visited Sept. 17, 1998) <http://www.apache.org>. (return to text)

n47.See Sendmail Consortium, Welcome to Sendmail.org (visited Sept. 17, 1998) <http://www.sendmail.org>. (return to text)

n48.See Robert Lemos, Linux maker lands big investors, ZDNN (visited Nov. 5, 1998) <http://www.msnbc.com/news/200767.asp>; Josh McHugh, Linux: the making of a global hack, Forbes (Aug. 10, 1998) <http://www.forbes.com/forbes/98/0810/6209094s1.html>; Glyn Moody, The Greatest OS that (N)ever Was, Wired 5.08 (Aug. 1997) <http://www.wired.com.wired/5.08/linux.html>; Sebastian Rupely, Linux builds momentum, PC Magazine (Sept. 15, 1998) <http://www.zdnet.com/zdnn/stories/zdnn smgraph display/0,4436,2137588,00.html>; Randy Weston, Linux gaining respect, CNET News.com (visited Nov. 5, 1998) <http://www.news.com/News/Item/0,4,24436,00.html?st.ne.ni.rel>. (return to text)

n49.See Eric S. Raymond, The Cathedral and the Bazaar (visited Feb. 4, 1998) <http://www.redhat.com/redhat/cathedral-bazaar/>; Eric S. Raymond, Homesteading the Noosphere (visited Aug. 15, 1998) <http://www.sagan.earthspace.net/esr/writings/homesteading/>. (return to text)

n50.See Josh McHugh, For the Love of Hacking: A Band of Rebels Think Software Should be as Free as the Air We Breathe, Forbes, Aug. 10, 1998, at 94; Debian GNU/Linux, What Does Free Mean? or What Do You Mean By Open Software? (visited Nov. 5, 1998) <http://www.debian.org/intro/free>. (return to text)

n51.See generally Cem Kaner, A Bad Law For Bad Software (visited Sept. 10, 1998) <http://lwn.net/980507/a/ucc2b.html> [hereinafter Kaner, A Bad Law] (quoting a non-disclosure agreement for a McAfee anti-virus product: "The customers will not publish reviews of the product without prior consent from McAfee."); Cem Kaner, Bad Software: What to do When Software Fails (visited Nov. 23, 1998) <http://www.badsoftware.com/uccindex.htm> (highlighting objectionable license terms); Letter from Jean Braucher & Peter Linzer to Members of the American Law Institute (May 5, 1998), available at <http://www.ali.org/ali/Braucher.htm> (visited Nov. 22, 1998) (moving ALI to return Article 2B to the drafting committee for fundamental revision). Some license terms seem more reasonable than their critics might suggest when viewed in context, such as the terms for the Microsoft Agent software product. See Charles C. Mann, Who Will Own Your Next Good Idea, Atlantic Monthly, Sept. 1998, at 80 (criticizing the license for Microsoft Agent). The Agent software grants the user the right to use certain "cutesy" animated figures, which are copyrighted by Microsoft. These figures are akin to Mickey Mouse or Barney. You can be certain that Disney would never license a third party to use Mickey Mouse in a product in which Mickey says disparaging things about Disney. Cf. Deere & Co. v. MTD Prod.s, Inc., 41 F.3d 39 (2d Cir. 1994) (holding that an attempted parody of Deere's deer character constituted trademark dilution).  (return to text)

n52.Customer satisfaction with software products is quite high. See, e.g., John Morris, Readers Rate Software & Support Satisfaction, PC Mag., July 1997, at 199 ("As in previous years, the results were generally positive. Most respondents give the products they use ratings of 8 or higher on a scale of 1 to 10 for satisfaction, and - with a few exceptions - give vendors solid ratings for technical support as well."); Peggy Watt, How Happy Are You<elip>Really?, PC Mag., July 1993, at 311-12 ("Are customers satisfied? You Bet."). (return to text)

n53.See U.C.C. 2-302 (West 1989); U.C.C. 2B-110 (July 24-31, 1998 Draft); 1 E.A. Farnsworth, Farnsworth on Contracts 4.28 (1990). (return to text)

n54.See Restatement (Second) of Contracts 206 (1981); 1 Farnsworth, supra note 53, 4.24. (return to text)

n55.See, e.g., DSC Communications v. DGI Techs., 81 F.3d 597 (5th Cir. 1996); Lasercomb v. Reynolds, 911 F. 2d 970 (4th Cir. 1990). (return to text)

n56.See generally Raymond T. Nimmer, Breaking Barriers: The Relation Between Contract and Intellectual Property Law 13 Berkeley Tech. L.J. 827 (1998) (return to text)

n57.See, e.g., Lemley, supra note 1, at 23; David A. Rice, Public Goods, Private Contract and Public Policy: Federal Preemption of Software License Prohibitions Against Reverse Engineering, 53 U. Pitt. L. Rev. 543 (1992). (return to text)

n58.For criticism of the private legislation theory, see Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. Rev. 557, 607 n.226 (1998) (criticizing "private legislation" as a metaphor that tends to mislead); Richard Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. Cal. L. Rev. 1353, 1359 (1982). Contrary to the assumptions underlying the term "private legislation," contract diversity in mass market software licenses is rampant, and software publishers actively attempt to bring terms to the user's attention rather than burying them. See Gomulkiewicz & Williamson, supra note 4, at 348-50. (return to text)

n59.See Bell, supra note 58, at 591. (return to text)

n60.See infra Appendix of Selected License Terms; Gomulkiewicz & Williamson, supra note 4, at 352-56, 361-65. Another objection seems to be to license terms that prohibit reverse engineering or de-compiling software. While some may have philosophical objections to these terms, they have been standard industry practice for many years among companies of all sizes. Article 2B is not the proper place to resolve this debate - Article 2B should not dictate the enforceability of any given contract term, except an unconscionable or otherwise unenforceable one. In some cases, courts have upheld prohibitions on reverse engineering as reasonable, and in others, such as when the user's goal is merely to achieve interoperability, courts have refused to uphold them on various grounds. See, e.g., ProCD v. Zeidenberg, 86 F.3d 1447, 1454-55 (7th Cir. 1996) (enforcing prohibition on reverse engineering); DSC Communications v. DGI Techs., 81 F.3d 597 (5th Cir. 1996) (copyright misuse); Vault Corp. v. Quaid Software, 847 F.2d 255 (9th Cir. 1988) (preemption). In reality, reverse engineering is seldom critical to the innovation necessary to advance the state of the art for personal computer software. See Gomulkiewicz & Williamson, supra note 4, at 359 n.97. The feature set and other characteristics of a software product are readily ascertainable in the normal use of the product or via publicly available information. The information one can glean from de-compiling is of limited use in any event. See Andrew Johnson-Laird, Software Reverse Engineering in the Real World, 19 U. Dayton L. Rev. 843, 902 n.4 (1994); Pamela Samuelson et al., Symposium: A Manifesto Concerning the Legal Protection of Computer Programs, 94 Colum. L. Rev. 2308, 2336 n.90 (1994). (return to text)

n61.The software publisher holds the exclusive right to copy, create derivatives, distribute, and publicly perform or display its software. The end user can only acquire these rights by license, as users do in numerous mass market licenses. See infra Appendix of Selected License Terms. (return to text)

n62.See Pro CD, 86 F.3d at 1451 (discussing the inefficiencies of requiring a signature on every contract); Restatement (Second) of Contracts 211 cmt. A (1981) (describing the benefits of standard forms); 1 Joseph M. Perillo, Corbin On Contracts 1.4, at 13-15 (rev. ed. 1993) (noting that we could not function as a fast-paced, industrialized nation if every contract had to be negotiated); Gomulkiewicz & Williamson, supra note 4, at 341-56; Maureen A. O'Rourke, Drawing the Boundary Between Copyright and Contract: Copyright Preemption on Software License Terms, 45 Duke L.J. 479, 495 (1995). (return to text)

n63.1 Farnsworth, supra note 53, 4.26-27, at 478-95 (1990). Literally to require dickering would create the absurd result that in order to have an agreement you would first have to have a disagreement. (return to text)

n64.See U.C.C. 2-204 (West 1989); U.C.C. 2B-202 (July 24-31, 1998 Draft). (return to text)

n65.See Gomulkiewicz & Williamson, supra note 4, at 352-56, 361-65. (return to text)

n66.Ralph Nader's Consumer Technology Project has proposed that software "lemon laws" be passed in every state. See Consumer Project on Technology, Protest Page on: Uniform Commercial Code Article 2B (visited Sept. 17, 1998) <http://www.cptech.org/ucc/ucc/html>; Brian McWilliams, Venders' Right to Ship Buggy Software Under Fire, PC World Online (Mar. 25, 1998) (visited Nov. 23, 1998) <http://www.pcworld.com./news/daily/data/0398/980325081609.html>. But see supra note 52 (customer satisfaction with software products is quite high). Several bills have been introduced in Congress to invalidate contractual prohibitions on reverse engineering. See, e.g., Digital Era Copyright Enhancement Act, H.R. 3048, 105th Cong. (1997). The European Union has also passed legislation on this issue. See Council Directive 91/250/EEC of 14 May 1991 on the Legal Protection of Computer Programs, art. 6 (permitting reverse engineering in EC countries to obtain information to create interoperable products in certain cases and overriding any contrary contractual provision).  (return to text)

n67.See Mary Jo Howard Dively & Donald A. Cohn, Treatment of Consumers Under Proposed U.C.C. Article 2B Licenses, 16 J. Marshall J. Computer & Info. L. 315, 327-28, 334 (1997). Ms. Dively and Mr. Cohn are co-chairs of the ABA Section of Business Law Subcommittee on Information Licensing. (return to text)

n68.See U.C.C. 2B-111 (July 24-31, 1998 Draft) ("Manifesting Assent"); id. 2B-112 ("Opportunity To Review; Refund") (return to text)
.
n69.See id. 2B-208(a)(2). (return to text)

n70.See id. 2B-208(b)(1). (return to text)

n71.See id. 2B-208(b)(2)-(3). (return to text)

n72.Dively & Cohn, supra note 67, at 334. (return to text)

n73.See U.C.C. 2B-208, Reporter's Note 2 (July 24-31, 1998 Draft) (commenting that U.C.C. 2B-208 "is not limited to consumer transactions"). (return to text)