CALIFORNIA LAW REVIER TVol. 87: 111 these two substitutes the historical norms of copyright -Paul goldstein ntroduction remake is roposed Uniform Commercial Code Article 2B (Article 2B) would he law of software and intellectual property licensing in a radical way Some of the more dramatic changes are apparent, invested the time in reading the rapid succession of 200-plus page drafts.5 But lurking behind the changes Article 2B would impose on the state law of transactions in information is another, more fundamental, shift that is larger than the debate over article 2B itself. article 2b creates a fundamental conflict between the goals of federal and state intellectual property law and the contract law that will govern intellectual property licenses. Under an Article 2B regime, litigation wont be about what the parties agreed to do with intellectual property. It wont even be about the scope or limits of intellectual property law itself. Rather, litigation will be about the limits that intellectual property law and policy impose on state enforcement of contracts that contravene, distort, or ignore that law. To paraphrase Whit Diffie, it will be about the transformation of copyright law from a creator 3.Paul Goldstein, Copyright and Its Substitutes, 1997 Wis. L. Rev. 865, 871 hanges, the reader hs re feed te he ether artiedes in this symposium as wep as inose con tained 1“Re209 discussing chang23ama1asye里maCm 雷器B是 erkeleper sheytus,obb oui Fane o k8}Y ke licensing Trade Secrets Easier( But Inmovation More Difficult), 87 Calif. L Article 2B. 13 Berkel hanges that Article 2B would involve, see J. Thomas Warlick, IV s8r19i9 Licensing and De Facto Copyright Legislation in UCC28, 45 J. Copyright Soc y (UsA) ments on of con e3B+}业18BCALIFORNIA LAW REVIEW [Vol. 87:111 these two substitutes the historical norms of copyright . . . . —Paul Goldstein3 Introduction Proposed Uniform Commercial Code Article 2B (Article 2B)4 would remake the law of software and intellectual property licensing in a radical way. Some of the more dramatic changes are apparent, at least to those who have invested the time in reading the rapid succession of 200-plus page drafts.5 But lurking behind the changes Article 2B would impose on the state law of transactions in information is another, more fundamental, shift that is larger than the debate over Article 2B itself. Article 2B creates a fundamental conflict between the goals of federal and state intellectual property law and the contract law that will govern intellectual property licenses. Under an Article 2B regime, litigation won’t be about what the parties agreed to do with intellectual property. It won’t even be about the scope or limits of intellectual property law itself. Rather, litigation will be about the limits that intellectual property law and policy impose on state enforcement of contracts that contravene, distort, or ignore that law. To paraphrase Whit Diffie, it will be about the transformation of copyright law from a creator’s 3 .Paul Goldstein, Copyright and Its Substitutes, 1997 Wis. L. Rev. 865, 871. 4 .U.C.C. art. 2B (Draft, Aug. 1, 1998). Throughout this Article, I will refer to the August 1, 1998 Draft of Uniform Commercial Code Article 2B as “Article 2B,” with or without the “August Draft” or “draft” designation. References to other versions of the draft will so be noted. The reader should be aware that the draft is a moving target, and should not rely on this Article to identify changes to the draft made after August 1, 1998. The most recent version of the draft can be downloaded from <http://www.lawlib.uh.edu/ucc2b/>. 5 .A few of these changes are discussed infra notes - and accompanying text. For other changes, the reader is referred to the other Articles in this Symposium, as well as those contained in a companion issue of the Berkeley Technology Law Journal, especially Peter A. Alces, W(h)ither Warranty: The B(l)oom of Products Liability Theory in Cases of Deficient Software Design, 87 Calif. L. Rev. 269 (1999) (discussing changes in warranty rules); Julie E. Cohen, Copyright and the Jurisprudence of Self-Help, 13 Berkeley Tech. L.J. (forthcoming Dec. 1998) (discussing changes in extra-judicial self-help); Rochelle Cooper Dreyfuss, Do You Want to Know a Trade Secret? How Article 2B Will Make Licensing Trade Secrets Easier (But Innovation More Difficult), 87 Calif. L. Rev. 191, 200-38 (1999) (discussing changes in trade secret law); Jane C. Ginsburg, Authors as “Licensors” of “Informational Rights” Under UCC Article 2B, 13 Berkeley Tech. L.J. (forthcoming Dec. 1998) (discussing changes in copyright provisions affecting authors). For an overview of the changes that Article 2B would involve, see J. Thomas Warlick, IV, A Wolf in Sheep’s Clothing? Information Licensing and De Facto Copyright Legislation in UCC 2B, 45 J. Copyright Soc’y (USA) 158 (1997). Some commentators assert that Article 2B is not “remaking” anything but is simply codifying existing law. See Robert W. Gomulkiewicz, The License Is The Product: Comments on the Promise of UCC Article 2B for Software Licensing, 13 Berkeley Tech. L.J. (forthcoming Dec. 1998) (manuscript at 1, on file with author) (“UCC Article 2B is not new law; it broadly accords with the law that is practiced today in the information and software industries.”). But even Ray Nimmer, Article 2B’s drafter, has apparently abandoned the pretense that the goal of Article 2B is to codify or restate existing law. Instead, Nimmer now promotes the draft as properly embracing change—at least change that “expand[s] the role of contracting.” Raymond T. Nimmer, Breaking Barriers: The Relation Between Contract and Intellectual Property Law, 13 Berkeley Tech. L.J. (forthcoming Dec. 1998) (manuscript at 1, on file with author); cf. Jessica Litman, The Tales That Article 2B Tells About