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UCC Article 2b  is Adopted by NCCUSL as Uniform Law Instead


Daniel S. Coolidge

Coolidge & Graves, Senior Counsel


Since early in the 1990’s, the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL, pronounced “nah-cue-zal) have been drafting a proposed new section of the Uniform Commercial Code. It was initially intended to address problems with application of Article 2 (sale of goods) to software licenses. This spring, the ALI withdrew from the drafting claiming that the draft was irremediably flawed. Since the UCC is a joint project of NCCUSL and the ALI, it could no longer be promulgated as part of the UCC, so NCCUSL re-named it the Uniform Computer Information Transactions Act and proceeded to adopt it this summer despite significant opposition.


            As an ABA advisory member to the drafting committee, I participated throughout the drafting process, but must admit that I agreed with the view that the draft was not recoverable, and should be reworked from scratch. My report follows. The views expressed are my own, and not those of the ABA or Coolidge & Graves.


The ALI and others thought

That time had passed the UCC:

With software contract problems fraught

And perfect tender’s Gordian knot[1]-

It’s time to think about 2B.


Throughout the land the cry was heard

“We need new law to meet this need!”

And so NCCUSL passed the word-

With ALI ‘s assembled herd

Cojoined to do this scriveners’ deed.


“If digitized, it’s then our ball!

Or access rights to what’s on line-

If sent by wire or bought in mall

At Negroponte’s[2] siren call

We’ll craft new vintage from old wine.”[3]


Consumers met with industry

From banks to entertainment kings.

The stock exchange and MTV

Proposed with due alacrity

Provisions cov’ring everything.


What started out as an attempt to

Put in writing current use,

Getting wisdom from the ones who[4];

Worked the trenches (Heaven sent you!)

Distilling brandy from grape juice, 


Became a work of tessellation

Cov’ring myriad battling thoughts

Crying out for an exception

To a rule’s broad application,

Forswearing “must” for many “oughts.”


Book authors cried “You must except

Our work if tendered on a disk!

Why should it mean, if we’re adept

And on computers work we’ve kept,

Our practices become at risk[5]


“By rules enshrined in your new code--

We’ve our own rules, which through the years

Of usage we have felt we owed

Them honor as our favored mode

To make misunderstanding drear


“And litigation’s strenuous test

Be banished in the certainty

Of practices by usage blessed.”

And so the draft was soon a nest

Of  worms and inconsistency.


Consumers cried out “You must see

That publishers will stand behind

Their products with a warranty

And which consumers always see

Before they must their purse unbind.”


The movie industry exclaimed

The draft applied to theater tickets!

“And what of us?” the banks complained

Our ATM agreements strain

The logic of these legal thickets.”


‘Gainst pirates, too, we must assemble

Legal bastions strong and true.

“Argh! Har! me mateys they resemble

Folks what’s scared! (See, watch ‘em tremble!)”

Oh catch these evil pirates, do!


As each affected industry[6]

Required their special circumstance

To be addressed by subparts b

(Ad nauseum to infinity)

A well wrought law now had no chance.


Exception piled upon exception,

Point after point combatants scored.

And some were seen as misconception

Needing even more correction

‘Til some else’s ox was gored.


What matter if the thread was lost

Of  what we started out to do?

A special interest salad tossed -

“I’ve got mine and damn the cost!”

Too many cooks had spoiled the stew.


The bold reporter, Raymond Nimmer[7]

Responded to the odor strong- 

“The scope’s too broad, I get a glimmer

That what is needed is a trimmer.

This thing’s become a bit too long!”


And so began the pruning process

Paced by deadlines long perceived.

“Cut back the scope, cut out the abscess-

Undo the wrongs requiring redress-

Give no one cause to be aggrieved.”


But lo! Wordsmithing’s detailed pokin’

Could not undo this legal tangle.

The drafters tried with brains a-smokin’

To unscramble eggs they’d broken

But loose provisions always dangled.


As fast as compromise was cleft

Its ripples through the draft were seen.

Immutable through warp and weft

‘Gainst drafters’ skills although so deft-

Turned Christmas into Halloween. [8]


So onward with our intellectual

Task to rein in on the scope.

Some said our work was ineffectual

(Sometimes seemed ‘twas almost sexual

Struggling with ideas to grope.)


The folks who funded this grand quest

O’er five long years around the land

Of meetings held in east and west

(At places sometimes not the best…)

Told drafters “Halt! Now stay your hand!


“You have a deadline- now!” (Oh bummer!)

“Prepare your draft for us to see.

We’ll vote it up or down this summer

We care not if it’s dumb or dumber-

It’s time to make some history.”[9]


Attorneys general ‘round the nation

With law professors steeped in lore

Said “Start anew, this draft’s creation

Cannot be fixed by emendation!

It’s rotten right down to the core.”


The ALI voiced its refusal

“This bastard draft we will not own!

Please try again, dear friend NCCUSL,

Or else we’re forced into recusal.

We’re gone! You must go it alone.”[10]


And so ‘twas cast from code commercial

(Uniform or otherwise),

Yclept[11] 2b, this draft’s inertial

State is changed by name traversal

And magically transmogrifies!


It’s called UCITA! And cast free

From UCC’s embraces now.[12]

It’s uniform, but cursed be he

Who counseled this iniquity

And gave us this demented cow.


UCITA’s blessed, ‘twill promulgate

NCCUSL’s now embraced the draft

To be enacted state by state

(Even though it’s second rate.)

But if you do, you must be daft.




            It’s failed of its essential purpose-

            (What’s “unum” worth without “e pluribus”?)

            It is, I fear, no longer worth us

            Reading through this dusty lore.


            The UCC is what we started

            To amend, and we have charted

            Many arguments which smarted

            (and some as well that also bored.)


            Let us not stop what we’ve begun;

            Let’s not accept the second rung

            No race is o’er till it is run-

            Let’s start anew this worthy chore.


            The UCC remains outmoded.

            Upon our backs the work is loaded.

            The “settlers for” will be outvoted

            And boot UCITA out the door.


            We’ll start anew, we’ve learned a lot,

            We’ll craft again, without the rot!

C’mon m’lads, let’s o’er the top!

            And let us press on evermore.


            (But way off in the land of Texas

            comes a plaintiff voice to vex us

            And bestir our solar plexus:

            Says Ray Nimmer- “Nevermore!”)




[1] The perfect tender rule of article 2 was seen as inapplicable to delivery of software products, which, as a practical matter, cannot be made without some bugs. Much time was spent discussing what degree of conformity with a customer’s specification (or publisher’s documentation) should be codified and how, but it was generally conceded by most participants that perfect tender did not fit in the context of software licensing. 

[2] Nicholas Negroponte, Professor of MediaTechnology at MIT and Founding Director of the MIT Media Lab, author of “being digital” (1995, Alfred Knopf, Inc.)

[3] An oft-heard criticism of the various drafts was that many affected industries had not been in existence long enough to have developed stable usages of the trade to which the drafting committee could look for guidance. The committee was accused of exceeding its mandate in making new law, rather than merely codifying existing practice.

[4] There was constant tension during the drafting process between the views that the UCC should reflect only default rules born of antecedent commercial practice, or that the drafting Committee should take a hand at creating new default rules to assist in the development of the law in this area, and the view that Article 2b should have some non-waivable normative content favorable to licensees.

[5] A great problem in defining scope was trying to articulate a clear line between what was properly covered and what was not. It was frequently pointed out that the same content if delivered in hard copy would be covered by an entirely different set of default rules if delivered on a disk, at least as the then current draft was worded.

[6] The single most intractable issue for the drafting committee was defining the scope of the proposed article. Finding a clear line of demarcation proved impossible: what of goods with embedded software? What about licenses of information? Does it matter if its on line? What if the same information is published in book form? What if a book includes a CD-ROM? The issue of scope lead to gradual expansion over time, affecting a greater number of different industries with different commercial practices. Drafting a single law that would appropriately cover them all lead to the drafts growing like Topsy. 

[7] Ray Nimmer, a noted authority on copyright and electronic commerce, was the drafting committee’s reporter. He was unflappable in the face of confusing and often conflicting instructions.

[8] Those with intractable sleep disorders may wish to review the prior drafts, which may be found on the Internet at

[9] For reasons not entirely apparent to the author, despite the opposition of the ALI, forty-five law professors, the attorneys general of Connecticut, Idaho, Indiana, Iowa, Kansas, Maryland, Nevada, New Mexico, North Dakota, Oklahoma, Pennsylvania, Vermont, Washington, California, Arizona, Arkansas, Florida, Minnesota, Mississippi, Missouri, New Jersey, Tennessee, West Virginia, and Wisconsin, and a variety of industry associations, NCCUSL went forward this summer  to have the draft voted upon by the full conference. The text of these letters may be found on the Internet at

[10] The text of the ALI members’ withdrawal from the committee may be seen on the Internet at

[11] This is not a typographical error. No one knows this word any more—It means “named.”

[12] Because of ALI’s withdrawal, NCCUSL was obliged not to promulgate as part of the UCC but rather as an independent uniform law. This lead to the additional criticism that it’s integration with the UCC was now more confusing than ever.

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Last modified: 1/1/2011