Issues for the April Committee Meeting
ISSUES FOR APRIL
SCOPE OF ARTICLE:
The question of scope remains difficult to resolve.
There are several specific controversies or questions
that should be addressed.
- First: Should the subject matter be
defined in terms of all information, subject
to stated exclusions, or should the subject
matter be limited to digital information, assuming
that the term digital will be defined in a manner
that covers modern electromagnetic technologies,
rather than solely the digital systems of today?
- Second: Should the transactions covered
be limited to licenses (defined as contracts
that expressly restrict use) or cover all transactions
in the relevant subject matter/
- Third: Should the scope cover all
licenses of intellectual property, including
patent and trademark licenses, subject to exclusions
to be developed during the drafting process.
- Fourth: Should the parties in transactions
not covered by the scope of article 2B (e.g.,
services contracts) be expressly allowed to
opt into the terms of the article by agreement?
- Fifth: Should there be an exclusion
for purely voluntary transactions where the
transferor receives no financial consideration
for the contract or services and is not engaged
in a commercial enterprise supported by advertising
or similar commercial income?
This draft follows the convention of the prior draft
and expands scope to the broadest limits in reference
to questions (1) and (2), while excluding many patent
and trademark licenses. Arguably, however, a focus
on "digital information" would provide a more workable
scope definition and narrow coverage to the modern
commerce to which this Article is primarily addressed.
CHOICE OF LAW:
This draft proposes treatment of cases in which
the basic choice of law principle would select a
foreign jurisdiction. This raises two questions:
- First: Is special treatment for foreign
licensors appropriate?
- Second: Is special treatment based
on a similarity or dissimilarity of the underlying
contract laws in the two jurisdictions appropriate
or should a different approach be adopted?
TRANSFER OF LICENSES
The April meeting will involve the first review
of provisions on the transfer of interests in licenses.
This entails a consideration of issues relating
to reconciling the personal nature of a license
and the overall federal policy of nontransferability
of a nonexclusive licensee's rights against the
UCC assumption of free trade.
PERFORMANCE ISSUES
This meeting will discuss performance issue and
how one gauges the measures against which performance
standards are applied. This presents a number of
issues, including:
- First: Is substantial performance
(material breach) the appropriate performance
standard in light of the complex and varied
nature of the performances involved in this
article?
- Second: Is the treatment of cure
appropriate (sect. 620) in light of the substantial
performance standard or should a more open-ended
approach be adopted to allow the material breaching
party an opportunity to cure?
- Third: Can the provisions on refusal
or acceptance of a performance be simplified
without losing important substantive protections?
- Fourth: Should the provisions on
adequate assurance and repudiation be deleted
and left to common law treatment?
- Fifth: Is more detail or more extended
treatment desirable for the various special
types of contracts covered in this Article?
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