|From: Charles McManis
Date: Mon, May 15, 2000 4:02 PM
Subject: Re: FTC Symposium on High Tech Warranties
Dear Mr. Cohn--I am extremely interested in the FTC's proposed public forum to examine warranty protection for software and other computer information products and services, particularly as it might pertain to UCITA and shrink-wrap licenses.
My own particular area of scholarly interest is intellectual property law. However, I became involved early on in the debate over UCITA, back when it was proposed UCC Article 2B. Indeed, because of concerns that I raised about Article 2B at the 1997 American Law Institute annual meeting, the ALI ultimately withdrew its support of this project and NCCUSL was forced to go it alone in pushing UCITA as a stand-alone uniform act.
In the course of my dealings with the Article 2B/UCITA Drafting Committee, I ultimately became convinced that UCITA is essentially special-interest legislation, masquerading as a uniform act. I am particularly concerned about the use of mass-market licenses to contract around, and thus effectively abrogate, the fair use privilege of U.S. copyright law. While the Drafting Committee did ultimately (albeit grudgingly) include a "public interest unconscionability" provision in UCITA, they did so only after NCCUSL passed a sense-of-the-house motion directing them to do so and only after the Drafting Committee did its best to water the provision down as much as possible.
At that point, I concluded that the best hope for correcting the imbalance created by UCITA would be through some sort of FTC preemption of the field. For that reason, I strongly support the FTC's announced proposal to conduct a public forum that examines UCITA's mass-market license and warranty provisions.
My comments on Article 2B/UCITA were published in a symposium issue of the California Law Review, 87 Cal. L. Rev. 173 (1999). A later article by Professor Pamela Samuelson and Kurt Opsahl, "Licensing Information in the Global Information Market: Freedom of Contract Meets Public Policy,"  European Intellectual Property Review 386, provides an excellent summary of the academic opposition to Article 2B/UCITA.
Incidently, I am currently organizing a conference, to be held here at Washington University School of Law during the spring of 200, on digital technology issues and am planning to have a panel discuss UCITA. Will the FTC's public forum take the form of a public hearing of some sort? If so, have any dates been tentatively set for the forum?
I look forward to futher announcements by the FTC on this important public policy matter.
Sincerely, Charles R. McManis, Professor of Law, Washington University, St. Louis, MO.