Re: New Copyight Legislation Introduced

The Boucher-Campbell and memorandum were distributed at the Article 2B Drafting Committee Meeting in Memphis this past weekend (Nov 21-23). It was not on the agenda, and not discussed, as most folks simply did not have time to read and absorb yet more material while attending to meeting topics in sessions of 8+ hours a day.

There was more discussion of 2B-105 which tautologically stated that a provision of the Article that is found to be preempted is preempted -- and that provision likely will be the focus of some proposals for more refined statement which

1. recognize -- and alert statute users -- that some statutory provisions (at least as implemented by a contract) could pose a federal-state law conflict, and that federal law maypreempt (not just in IP, but in EFT Reg E or other such realms, also)
2. could even recognize that use of state law to enforce a contract term may pose a federal-state law conflict and a resulting preemption issue.

My though at the moment is that this can be best stated not by the tautology or something like it, but in the form of a saving clause which sets forth that

1. the remainder of the Article is unfaffected by any determination that any specific provision is invalid and
2. a court must hear argument and make a determination on whether an affected contract as a whole may be enforced sans an invalidated term, or must be treated as unenforceable -- at lest prospectively. The latter may require consideration, e.g., of whether the adversely affected party would have chosen to make the contract on those other terms, including price, if it knew the particular term could not be enforced. It also requires consideration of what measure of compensation should be provided for, e.g., any prior use of the software or information that is the transaction subject matter.

I will be working on developing proposed language in this style and acope and invite suggestions. BUT PLEASE ... I will be away and without access to my e-mail from Thur Nov 27 to Tue Dec 2, so I would appreciate receiving responses before or after that hiatus in order to not overload my mailbox.

David Rice
Professor of Law
Roger Willisms University School of Law
drice[_at_]world.std.com Received on Mon Nov 24 1997 - 18:50:56 GMT