CALIFORNIA LAW REVIER TVol. 87: 111 standard forms, who will not even need a signature(or its electronic equivalent)in order to enforce their terms 22 Because of this shift contracts under Article 2B eally more akin to property rights: the contracts can be viewed as equitable servitudes that"run with" the goods in much the same way that some property owners once tried to impose restrictions on chattel. 23 This shift is extremely important. The existing relationship between intellectual property and contract law is based on a conception of what constitutes an enforceable contract. Article 2B changes that conception; as a result, it cannot help but change the relationship as Finally, Article 2B makes virtually all of its default rules subject to hange by"agreement of the parties, 24 including its provisions on choice of 8=即m跳p野职 Eiecoron's dEbases 868- procD ezendeth ber nll N ster The sag lenses witha bleodefeion foe al Cyberspace: The Case for Contracting with Potential Infringers, 35 Colum 0m是9m zeidenberg. 10 Harv Bran de Techiryss, 9g, Genry avid Morde, dominent, ProCD: Inc: V 预吧如留B、出)里 Shrink-Wrap Licenses, 16J. Marshall J Computer Info L, 439, 442(1997). not licensees, will be able oppa 8 2B-203 transactions outside of the mass market, by contrast, are treated more 2B-207(setting forth requirements for adopting terms of records that are not deper 23. Some stators have made this See thomas m.s. Hemnes. Restraints oi omputer Sofware Licensing, 71 Der C27sHE是gh1mR出E牌m amge3签留上总 phefomfreedom: f entracte The en 证k3温 ive externalities. sterk s posint has even 1998)(stating as a theme of Article 2B that"the Undamental tenet of the 2A) 中 Contract Default Rules, 83 Cornell L. Rev. 609 allow peeple to avoid them. Or-公以7A亮 Yale Lj.87(1989)CALIFORNIA LAW REVIEW [Vol. 87:111 standard forms, who will not even need a signature (or its electronic equivalent) in order to enforce their terms.22 Because of this shift, contracts under Article 2B are really more akin to property rights: the contracts can be viewed as equitable servitudes that “run with” the goods in much the same way that some property owners once tried to impose restrictions on chattel.23 This shift is extremely important. The existing relationship between intellectual property and contract law is based on a conception of what constitutes an enforceable contract. Article 2B changes that conception; as a result, it cannot help but change the relationship as well. Finally, Article 2B makes virtually all of its default rules subject to change by “agreement of the parties,”24 including its provisions on choice of L. Rev. 1639 (1997); Lunney, supra note . For criticism of ProCD on copyright preemption grounds, see Elkin-Koren, Copyright Policy, supra note , at 106-13; Karjala, supra note , at 521; McManis, supra note , at 178-79, 182-84; Minassian, supra, at 569; O’Rourke, supra note ; Brian Covotta & Pamela Sergeeff, Comment, ProCD, Inc. v. Zeidenberg, 13 Berkeley Tech. L.J. 35 (1998); Thomas Finkelstein & Douglas C. Wyatt, Note, Shrinkwrap Licenses: Consequences of Breaking the Seal, 71 St. John’s L. Rev. 839, 868-69 (1997); Jeannett M. Hill, Note, The State of Copyright Protection for Electronic Databases Beyond ProCD v. Zeidenberg : Are Shrinkwrap Licenses a Viable Alternative for Database Protection?, 31 Ind. L. Rev. 143, 165-72 (1998); Mercer, supra, at 1287; Tarolli, supra, at 1639; Brett L. Tolman, Note, ProCD, Inc. v. Zeidenberg: The End Does Not Justify the Means in Federal Copyright Analysis, 1998 BYU L. Rev. 303; Note, Seventh Circuit Holds That Shrinkwrap Licenses Are Enforceable, 110 Harv. L. Rev. 1946 (1997). For arguments endorsing the result in ProCD, see Michael A. Jaccard, Securing Copyright in Transnational Cyberspace: The Case for Contracting with Potential Infringers, 35 Colum. J. Transnat’l L. 619 (1997); Darren C. Baker, Note, ProCD v. Zeidenberg : Commercial Reality, Flexibility in Contract Formation, and Notions of Manifested Assent in the Arena of Shrinkwrap Licenses, 92 Nw. U. L. Rev. 379 (1997); Brandon L. Grusd, Note, Contracting Beyond Copyright: ProCD, Inc. v. Zeidenberg, 10 Harv. J.L. & Tech. 353 (1997); Jerry David Monroe, Comment, ProCD, Inc. v. Zeidenberg: An Emerging Trend in Shrinkwrap Licensing? , 1 Marq. Intell. Prop. L. Rev. 143 (1997); Joseph C. Wang, Casenote, ProCD, Inc. v. Zeidenberg and Article 2B: Finally, The Validation of Shrink-Wrap Licenses, 16 J. Marshall J. Computer & Info. L. 439, 442 (1997). 22 .Actually, the draft clearly contemplates that only licensors, not licensees, will be able to take advantage of some of these new provisions enforcing standard forms. For example, section 2B-208, dealing with mass-market licenses, is drafted in such a way that it applies only to terms written by licensors that bind licensees. See U.C.C. § 2B-208 (Draft, Aug. 1, 1998). Thus, it speaks of parties having “an opportunity to review a mass-market license before becoming obligated to pay for the information,” id. § 2B-208(b), and entitlement to receive a refund from the licensor, see id. § 2B-208(b)(1). These terms clearly contemplate only licensor-drafted contracts, not licensee-drafted contracts. Transactions outside of the mass market, by contrast, are treated more neutrally. See id. § 2B-207 (setting forth requirements for adopting terms of records that are not dependent on the party’s status). 23 .Some commentators have made this point. See Thomas M.S. Hemnes, Restraints on Alienation, Equitable Servitudes, and the Feudal Nature of Computer Software Licensing, 71 Denv. U. L. Rev. 577 (1994) (discussing enforceability of restrictions on software use by reference to the doctrine of equitable servitudes); Margaret Jane Radin & Polk Wagner, The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace 73 Chi.-Kent L. Rev. (forthcoming 1998); Lunney, supra note ; cf. Stewart E. Sterk, Freedom from Freedom of Contract: The Enduring Value of Servitude Restrictions, 70 Iowa L. Rev. 615 (1985) (justifying restrictions on equitable servitudes on the grounds that such servitudes create significant negative externalities). Sterk’s point has even greater force for intellectual property than it does for real property. 24 .See U.C.C. art. 2B Preface (Draft, Aug. 1, 1998) (stating as a theme of Article 2B that “‘the fundamental tenet of the common law [is the] freedom of the parties to contract.’ . . . A default rule applies only if the parties do not agree to the contrary.”) (quoting U.C.C. art. 2A). A recent study by Russell Korobkin has found that people naturally treat default rules as “endowments” and demonstrate an “irrational” preference for retaining them. See Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83 Cornell L. Rev. 608 (1998). If this is right, it may matter what default rules are selected even in the context of a statute like Article 2B, which seems designed primarily to allow people to avoid them. On the design of default rules, see Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87 (1989)