1999 BEYOND PREEMPTION Article 2B does many unobjectionable things-and even some good thingsl4-that have nothing to do with intellectual property law, the critical thing about Article 2B for my purposes is its dramatic expansion of the scope and power of contracts, particularly contracts drafted by software vendors and intellectual property owners. This expansion leads to potential conflicts and tensions between Article 2B and intellectual property law. In this Part, I discuss the ways in which Article 2B expands the scope and power of contracts, as well as the conflicts with intellectual property law that this expansion may create A article 2B's expansi on of the Scope and Power of Contracts Article 2B expands the scope and power of contracts in three ways. 15 First, Article 2B reverses the well-settled rule of existing law that in determining whether a transaction is a sale. a lease. or a license. courts look to the economic the iteral lang agg oof this provisi 包 the very least, of patents, also fall within Article 2E What constitutes software, and which patents are"software patents, "is itself far from clear. See ant ectuel 始4gm既mE以m￥Tmgb例‰ digitai s 3 Berkeley Tech. L.J. (forthcoming Dec. 1998)(challenging the Article 2B framework for o'g是骤h要温:3E92C2翻 蛊唱址B出沿邮品 础eDbR,P粥 nst explicit federal rules insofar as reasonably possible art. 2B the other han lNstitute the aha e Namon Conuterelnt, of omdmisste 品w盟m咄m咫氵 ENCCoS Rostheltecooper Dreyfuss (Sept:2199on urity interests Intellectual Property and Commercial Law Collide, 96 Colum. L Rev. 1645(1996)1999] BEYOND PREEMPTION Article 2B does many unobjectionable things—and even some good things14—that have nothing to do with intellectual property law, the critical thing about Article 2B for my purposes is its dramatic expansion of the scope and power of contracts, particularly contracts drafted by software vendors and intellectual property owners. This expansion leads to potential conflicts and tensions between Article 2B and intellectual property law. In this Part, I discuss the ways in which Article 2B expands the scope and power of contracts, as well as the conflicts with intellectual property law that this expansion may create. A. Article 2B’s Expansion of the Scope and Power of Contracts Article 2B expands the scope and power of contracts in three ways.15 First, Article 2B reverses the well-settled rule of existing law that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic agree are sales of goods under current law. Indeed, it would appear impossible to sell a book under the literal language of this provision. While the reporter’s note 26 to section 2B-102 states that the term “license” “does not include a sale of a copy of a book since there is no express contractual restriction on the use of the information,” id. § 2B-102 reporter’s note 26, this reflects a misunderstanding about intellectual property law. A sale of a book does not grant the buyer ownership of the copyright in the book, and books typically make that clear on the copyright page. A sale of a book is, therefore, within the literal definition of a “license.” Transactions involving copyrights, trade secrets, and the right of publicity are certainly within the scope of Article 2B. Trademarks and patents appear at first to be excluded from coverage, see id. § 2B-104(2), but we are then told that they will be included if “associated with a license or software contract that is otherwise covered by this article . . . .,” id. Since under the definition of a “license” any transaction in information is almost certainly included, at the very least, software patents, and arguably a much broader group of patents, also fall within Article 2B. What constitutes software, and which patents are “software patents,” is itself far from clear. See 14 .Chief among the good aspects of Article 2B is its establishment of uniform rules regarding on-line and electronic contracting. This may truly be an area where having a uniform rule matters more than what the rule actually says. Cf. Peter A. Alces & Harold F. See, The Commercial Law of Intellectual Property 346-47 (1994) (noting the importance of certainty in commercial law). But see A. Michael Froomkin, 2B as Legal Software for Electronic Contracting: Operating System or Trojan Horse, 13 Berkeley Tech. L.J. (forthcoming Dec. 1998) (challenging the Article 2B framework for digital signatures). 15 .Article 2B has claimed a posture of “aggressive neutrality” with respect to federal intellectual property law. See U.C.C. art. 2B Preface at 48 (Draft, Feb. 1998); see also U.C.C. art. 2B Preface at 33 (Draft, Apr. 1998) (“This Article does not concern, and does not alter any law creating or limiting intellectual property rights or privileges in information.”). In fact, however, a change in the terms of contract law necessarily will affect the contract-intellectual property interface. Such a change cannot be considered “neutral” in application, even if it is neutral in intent, because the balance of rights between vendors and users is necessarily a function of all the legal rules that apply to them. Further, the draft concedes that it is not always neutral even in intent: “[I]n several situations, provisions push against explicit federal rules insofar as reasonably possible.” U.C.C. art. 2B Preface (Draft, Aug. 1, 1998). The preference of the drafters for some federal rules and not others might be discerned in the rather schizophrenic approach Article 2B takes toward preemption. On the one hand, Article 2B asserts that state law should be made consistent with federal law, because to do otherwise would be to “create[] true traps for the unwary.” Id. On the other hand, the same page of the draft rejects any effort to inject other federal principles into the debate, claiming “neutrality,” see id., despite instruction by both the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL) to take account of those federal policies. See Charles R. McManis, The Privatization (or “Shrink-Wrapping”) of American Copyright Law, 87 Calif. L. Rev. 173 (1999) (discussing the ALI instruction); Electronic Mail from Harvey Perlman, Nebraska Commissioner on Uniform State Laws, NCCUSL, to Rochelle Cooper Dreyfuss (Sept. 22, 1998) (on file with California Law Review) (discussing NCCUSL instruction). Contrast this approach with Article 9 of the Uniform Commercial Code (U.C.C.), which contains “stepback” provisions for cases in which its provisions on security interests overlap with federal law, including federal intellectual property law. See U.C.C. §§ 9-104, 9-302 (1994). For a discussion of inconsistencies in the Article 9 approach, see Alice Haemmerli, Insecurity Interests: Where Intellectual Property and Commercial Law Collide, 96 Colum. L. Rev. 1645 (1996)