ARCHIVED: Proposed Article 2B of the Uniform Commercial Code

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March 27, 1997

Professor Raymond Nimmer
Reporter, UCC Article 2B Drafting Committee
University of Houston Law Center
4800 Calhoun
Houston, TX 77204

Dear Professor Nimmer:

The American Association of Law Libraries (AALL) has serious concerns about the goals and impact of proposed Article 2B of the Uniform Commercial Code. The general trend toward licensing of information and the specific validation of shrinkwrap and other mass-market clickable licenses threaten the ability of libraries to achieve their fundamental mission to collect and share information.

AALL is a nonprofit educational organization with nearly 5,000 members nationwide. Our members respond to the legal and governmental information needs of legislators, judges and other public officials at all levels of government, law professors and students, attorneys, corporations, and members of the general public.

AALL believes that widespread licensing of information is likely to give creators and publishers far greater rights than Congress conferred upon them in the Copyright Act and, at the same time, limit the ability of libraries and their users to use information in the ways they have come to expect. In the Copyright Act of 1976, Congress created a careful balance of rights between creators and users of copyrighted works. Subsequent revisions to the Act, such as amendments to Section 109 which recognize library lending of software and sound recordings, attempted to preserve that balance.

A regime of licenses for information has the potential to largely supplant copyright as the primary legal mechanism for the protection of intellectual property. Licenses may become the primary means by which information is protected and distributed. We believe that the balance so carefully woven into the Act should not be abrogated by the terms of the license, especially a unilateral license, which would have the practical effect of preempting the Act. As two specific examples, we believe that neither the fair use section, nor the section 108 library exemption should be curtailed through the terms of a contract. Moreover, as a matter of public policy, we believe that licenses should not create a new form of protection through contract for works which Congress decreed are in the public domain, such as works of the United States government and those works lacking the requisite originality for copyright protection.

AALL is also concerned about the characterization of what is really a purchase as a license for use, rather than a sale of copy. Under the first sale doctrine, a library may lend to its users a copy of a work that it lawfully owns. Restrictive license terms, without a first sale equivalent, would potentially limit access to information in library collections.

Moreover, American copyright law has long protected a library's right to acquire materials by gift through the first sale doctrine. Many libraries now enhance their collections through donations or exchanges of materials. Without the first sale doctrine, publishers could easily prevent libraries from continuing this efficient and legitimate practice.

Even if the mass market licenses were not unilateral, the loss of copyright balance and the first sale framework also leaves an impossibly complex practical and legal burden for libraries which would have to negotiate many different licenses. Specifically trained library staff would have to address each information product separately in an attempt to negotiate and secure appropriate patron access. Because library users are not in privity of contract, libraries face particularly daunting legal and practical obstacles in attempting to enforce license terms against library users.

The option to return the material for a refund is hardly ameliorating. If book publishers could have refused to sell to libraries or could have charged more for a sale to a library, many would have made such choices. In fact, book, journal, newspaper and other print publishers may look to Article 2B as a way to gain what they have never received through the copyright law -- total control over all uses of their product.

Finally, we note that the definition of "information" in Section 2B-102(18) encompasses printed matter. Although Note 1 to Section 2B-103 explains that "sales of books and newspapers are not covered" by Article 2B, nothing in the language of the Article itself prevents book publishers from covering their products with shrinkwrap and enclosing contracts which transform the familiar sale of a copy into a license that limits the use of the product.

Along with the rest of the library community, AALL is continuing its review of the proposed revisions to U.C.C. Article 2. As a large segment of customers who would be affected by the changes, we believe there are likely to be other areas of concern that will surface as our review continues.

In the meantime, AALL appreciates the opportunity to provide these written comments on proposed Article 2B. We urge the Drafting Committee to reconsider provisions which permit such radical restructuring of rights in information and expression. If you so recommend, a representative of the American Association of Law Libraries will attend a future meeting of the Drafting Committee to discuss our concerns further.

Sincerely,

Robert L. Oakley
Washington Affairs Representative

Jim Heller, Chair
Copyright Committee