1999 BEYOND PREEMPTION Second. Article 2B redefines what constitutes a contract. aband focus on offer and acceptance, and therefore on the agreement at the time the parties conclude a deal, in favor of a rule that the intellectual property owner's standard form terms will be enforced, even if they are contained in a"shrinkwrap"or clickwrap"license that the buyer cannot see until the transaction has already occurred20 In so doing, Article 2B adopts a view that is decidedly in the minority among current courts, 2I and that is dramatically to the benefit of the drafters of e,a4mg:匙太出m是妞课田n lcense so provides.出PY 部盘阳如度 involved at all in the assent process. See id. 8 d. reporters note 5. The reporters notes to 3题能Bgmg出e础ee图 A出oa the license terms before indberg nene rceabe of copevigst 2zh rg Licenses udins hat shrink wa- geass sse a mest 9a. oas only brought to tion of the buver after the ourt to have enforced a shrinkwrap license. rOCD decision is a sufficiently radical departure from tra Ram时知2 see nem cved trom the current draft, a significant further change in goveming law outsid nney contrasts Hill with Authors Newspapers Ass'n 1 O Gorman Co., 147 F at 619-20,in which the court rej 出m器:mra品mr最 普出m米emP既e是, Michael J. Madison, " Legal Ware Contract and Copyright in the Digital Age em:3bXm3别和Cnm是om7明Emm cobert i. Morfim comment denraic ifo Pron and the dentin w reisen 4 Case Comm(eng oi eidenberg, 32 New Eng. L Rev. 513, 537-50(1998) Shrinkwrap"Sofhrare Licenses, 31 Loy. L.A. L. Rev. 325(1997); Ste Future of Information Commerce Under Contemporary Contract and Copyright Principles, 46 Am. U1999] BEYOND PREEMPTION sales.19 Second, Article 2B redefines what constitutes a contract, abandoning the focus on offer and acceptance, and therefore on the agreement at the time the parties conclude a deal, in favor of a rule that the intellectual property owner’s standard form terms will be enforced, even if they are contained in a “shrinkwrap” or “clickwrap” license that the buyer cannot see until the transaction has already occurred.20 In so doing, Article 2B adopts a view that is decidedly in the minority among current courts,21 and that is dramatically to the benefit of the drafters of 19 .See Nimmer et al., supra note , at 34-40 (discussing this shift); Reichman & Franklin, supra note , at 49 (same). Article 2B’s drafter Ray Nimmer has elsewhere pointed out the critical distinction between sale and license for copyright purposes. See Raymond T. Nimmer, Article 2B: An Introduction, 16 J. Marshall J. Computer & Info. L. 211, 218-19 (1997). 20 .Article 2B provides that terms are considered part of a contract if the buyer “manifest[s] assent.” U.C.C. § 2B-208(a) (Draft, Aug. 1, 1998). This phrase is broad enough to include engaging in the “affirmative conduct” of using the information one has already bought, if the shrinkwrap license so provides. See id. § 2B-111(c); id. § 2B-111 reporter’s note 3. Indeed, no person need be involved at all in the assent process. See id. § 2B-111(c); id. reporter’s note 5. The reporter’s notes to Article 2B section 2B-111 also provide that contract terms can be included even without a manifestation of assent, simply by giving prior notice to the other party of the terms. See id. § 2B-111 reporter’s note 6. This too represents a change from current law. See, e.g., Authors & Newspapers Ass’n v. O’Gorman Co., 147 F. 616, 619-20 (D.R.I. 1906) (holding that merely including “license” terms on the inside cover of a book did not create a contract on those terms). By contrast, in some on-line “clickwrap” licenses, the buyer can see the license terms before entering into the contract. Such licenses are more likely to be enforceable under traditional contract doctrine. See, e.g., Hotmail Corp. v. Van Money Pie Inc., 47 U.S.P.Q.2d 1020 (N.D. Cal. 1998). 21 .Numerous courts have rejected shrinkwrap licenses as unenforceable. See Step-Saver Data Sys. v. Wyse Tech., 939 F.2d 91, 98-100 (3d Cir. 1991); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 270 (5th Cir. 1988); Novell, Inc. v. Network Trade Ctr., Inc., No. 95Cv00523 (D. Utah 1997); Morgan Labs., Inc. v. Micro Data Base Sys., Inc. 41 U.S.P.Q.2d 1850 (N.D. Cal. 1997) (refusing to allow a shrinkwrap license to modify a preexisting contract); Arizona Retail Sys., Inc. v. The Software Link, Inc., 831 F. Supp. 759, 764-66 (D. Ariz. 1993); Foresight Resources Corp. v. Pfortmiller, 719 F. Supp. 1006, 1010 (D. Kan. 1989); see also L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright 220 (1991) (concluding that shrinkwrap licenses are almost certainly unenforceable); Lemley, Shrinkwrap Licenses, supra note , at 1248-59 (discussing these cases); cf. Microstar v. Formgen, Inc., 942 F. Supp. 1312, 1317 (S.D. Cal. 1996) (noting but not resolving the issue), aff’d in part, rev’d in part on other grounds, 1998 WL 598544 (9th Cir. Sept. 11, 1998). While these decisions were rendered on various grounds, a typical conclusion is that the contract was formed when the software was exchanged for money, and that the terms of the contract do not include a shrinkwrap license that was only brought to the attention of the buyer after the exchange. See Step-Saver, 939 F.2d at 98-100. The Seventh Circuit is the only court to have enforced a shrinkwrap license. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996); cf. Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1150 (7th Cir. 1997) (extending ProCD in a non-shrinkwrap case), cert. denied, 118 S. Ct. 47 (1997). The Hill decision is a sufficiently radical departure from traditional principles of contract formation that every Article 2B draft until the present one rejected it. See U.C.C. § 2B-111(b) (Draft, Apr. 1998) (“[M]ere retention of a record without objection is not a manifestation of assent.”). Section 111(b) was removed from the current draft, a significant further change in governing law outside the Seventh Circuit. Lunney contrasts Hill with Authors & Newspapers Ass’n v. O’Gorman Co., 147 F. at 619-20, in which the court rejected an attempt to impose contractual terms on the sale of a copyrighted book by placing those terms on the inside cover. See Lunney, supra note . The Authors & Newspapers court noted that “affirmative proof of communication, additional to that afforded by the mere fact that a notice is in the book, is essential to show that the purchaser agreed.” Authors & Newspapers, 147 F. at 619; see also Lunney, supra note , at 7 (endorsing this result). For criticism of ProCD on contract law grounds, see, e.g., Michael J. Madison, “Legal Ware”: Contract and Copyright in the Digital Age , 67 Fordham L. Rev . (forthcoming 1999); Apik Minassian, The Death of Copyright: Enforceability of Shrinkwrap Licensing Agreements, 45 UCLA L. Rev. 569 (1997); Jason Kuchmay, Note, ProCD, Inc. v. Zeidenberg: Section 301 Copyright Preemption of Shrinkwrap Licenses—A Real Bargain for Consumers?, 29 U. Tol. L. Rev. 117 (1997); Kell Corrigan Mercer, Note, Consumer Shrink-Wrap Licenses and Public Domain Materials: Copyright Preemption and Uniform Commercial Code Validity in ProCD v. Zeidenberg, 30 Creighton L. Rev. 1287 (1997); Robert J. Morrill, Comment, Contract Formation and the Shrink Wrap License: A Case Comment on ProCD, Inc. v. Zeidenberg , 32 New Eng. L. Rev. 513, 537-50 (1998); Christopher L. Pitet, Comment, The Problem With “Money Now, Terms Later”: ProCD, Inc. v. Zeidenberg and the Enforceability of “Shrinkwrap” Software Licenses, 31 Loy. L.A. L. Rev. 325 (1997); Stephen P. Tarolli, Comment, The Future of Information Commerce Under Contemporary Contract and Copyright Principles, 46 Am. U