Re: Shrinkwrap Licenses - Reply re UCC2b

From: Cem Kaner <kaner[_at_]kaner.com>
Date: Fri, 28 Aug 1998 10:02:27 -0500

On 8/27/98, Mark Lemley <mlemley[_at_]mail.law.berkeley.edu> wrote:
>
> Two thoughts on this.
>
> First, it seems clear that despite this difference in definition,
> UCC 2b itself extends to cover both computer programs and digital
> content. While some of the rules may differ between these two
> subjects, most would not.
>
> Second, David Nimmer has an excellent paper exploring the ways in
> which UCC2B changes traditional copyright terms forthcoming in the
> California Law Review's UCC 2B symposium.

Article 2B used to treat digital content similarly to computer programs, but it has evolved. These days, it makes a substantial distinction between the published information content and the software. There are several carve-outs through the Article that favor providers of published information content over those of computer programs. For example, there are no warranties of quality associated with the published information content.

In its current form, 2B not only provides this extra protection for providers of "data" but also draws a line between the user interface (UI) of the program and the whatever-is-not-user-interface. Under 2B, UI is published information content (read the definition of that term), and therefore the lack of express warranties provided by 2B for published information content also applies to the user interface of software.

Much of the evolution of software design over the past 30 years has involved the recognition that the UI is a core aspect of many products. The question of whether a user interface design error (that, for example, substantially reduces a customer's productivity with the software) is a defect is settled (yes, it is) in many quarters, settled (no it isn't) in other quarters and still a raging debate in others. To a large degree, the intended purpose and market of the product determine whether the UI is important for that product or not. For Article 2B to take a stand that blindly separates the user interface of the program from the rest of the program is an intervention in an engineering debate that will create consequences that I don't think would be anticipated or appreciated by most attorneys.

• Cem Kaner

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Cem Kaner, J.D., Ph.D.				       Attorney at Law 
P.O. Box 1200           Santa Clara, CA 95052             408-244-7000

Author (with Falk & Nguyen) of TESTING COMPUTER SOFTWARE (2nd Ed, VNR) <kaner[_at_]kaner.com>

This e-mail communication should not be interpreted as legal advice or a legal opinion. The transmission of this e-mail communication does not create an attorney-client relationship between me and you. Do not act or rely upon law-related information in this communication without seeking the advice of an attorney. Finally, nothing in this message should be interpreted as a "digital signature" or "electronic signature" that can create binding commercial transactions. Received on Fri Aug 28 1998 - 18:40:59 GMT