Article Title

The License Is the Product: Comments on the Promise of Article 2B for Software and Information Licensing

Publication Title

Berkeley Technology Law Journal

Keywords

Article 2B, licensing, software

Document Type

Article

Abstract

Article 2B promises to draw together contract principles for software and information licensing that, at present, are spread among various bodies of law.

This Article argues that Article 2B must affirm industry standard licensing practices in order to prove beneficial. For example, Article 2B's affirmation of industry standard mass market licensing is important for both publishers and end users. Article 2B must also provide the flexibility to accommodate new distribution and licensing models that will arise as electronic commerce matures. Any other approach would fundamentally disrupt the software and information industries.

Moreover, this Article urges the drafters of Article 2B to resist remaining too wedded to the hard goods-centric rules of Article 2 in crafting default rules. Article 2B's default rules should be specifically tailored to the software and information industries. The Article 2B drafting committee has achieved varying degrees of success in formulating default rules that fit those industries for warranties, duration of contracts, and interpretation of exclusive license grants, at times imposing rules better suited to the sale of goods.

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