March 27, 1997

Professor Raymond Nimmer
Reporter, UCC Article 2B Drafting Committee
University of Houston Law Center
4800 Calhoun
Houston, TX 77204

Dear Professor Nimmer:

     The American Association of Law Libraries (AALL) has
serious concerns about the goals and impact of proposed
Article 2B of the Uniform Commercial Code.  The general
trend toward licensing of information and the specific
validation of shrinkwrap and other mass-market clickable
licenses threaten the ability of libraries to achieve their
fundamental mission to collect and share information.

     AALL is a nonprofit educational organization with
nearly 5,000 members nationwide.  Our members respond to the
legal and governmental information needs of legislators,
judges and other public officials at all levels of
government, law professors and students, attorneys,
corporations, and members of the general public.  

     AALL believes that widespread licensing of information
is likely to give creators and publishers far greater rights
than Congress conferred upon them in the Copyright Act and,
at the same time, limit the ability of libraries and their
users to use information in the ways they have come to
expect.  In the Copyright Act of 1976, Congress created a
careful balance of rights between creators and users of
copyrighted works.  Subsequent revisions to the Act, such as
amendments to Section 109 which recognize library lending of
software and sound recordings, attempted to preserve that
balance.  

     A regime of licenses for information has the potential
to largely supplant copyright as the primary legal mechanism
for the protection of intellectual property.  Licenses may
become the primary means by which information is protected
and distributed.  We believe that the balance so carefully
woven into the Act should not be abrogated by the terms of
the license, especially a unilateral license, which would
have the practical effect of preempting the Act.  As two
specific examples, we believe that neither the fair use
section, nor the section 108 library exemption should be
curtailed through the terms of a contract.  Moreover, as a
matter of public policy, we believe that licenses should not
create a new form of protection through contract for works
which Congress decreed are in the public domain, such as
works of the United States government and those works
lacking the requisite originality for copyright protection.

     AALL is also concerned about the characterization of
what is really a purchase as a license for use, rather than
a sale of copy.  Under the first sale doctrine, a library
may lend to its users a copy of a work that it lawfully
owns.  Restrictive license terms, without a first sale
equivalent, would potentially limit access to information in
library collections.  

     Moreover, American copyright law has long protected a
library_s right to acquire materials by gift through the
first sale doctrine.  Many libraries now enhance their
collections through donations or exchanges of materials. 
Without the first sale doctrine, publishers could easily
prevent libraries from continuing this efficient and
legitimate practice.  

     Even if the mass market licenses were not unilateral,
the loss of copyright balance and the first sale framework
also leaves an impossibly complex practical and legal burden
for libraries which would have to negotiate many different
licenses.  Specifically trained library staff would have to
address each information product separately in an attempt to
negotiate and secure appropriate patron access.  Because
library users are not in privity of contract, libraries face
particularly daunting legal and practical obstacles in
attempting to enforce license terms against library users.

     The option to return the material for a refund is
hardly ameliorating.  If book publishers could have refused
to sell to libraries or could have charged more for a sale
to a library, many would have made such choices.  In fact,
book, journal, newspaper and other print publishers may look
to Article 2B as a way to gain what they have never received
through the copyright law -- total control over all uses of
their product.

     Finally, we note that the definition of _information_
in Section 2B-102(18) encompasses printed matter.  Although
Note 1 to Section 2B-103 explains that _sales of books and
newspapers are not covered_ by Article 2B, nothing in the
language of the Article itself prevents book publishers from
covering their products with shrinkwrap and enclosing
contracts which transform the familiar sale of a copy into a
license that limits the use of the product.

     Along with the rest of the library community, AALL is
continuing its review of the proposed revisions to U.C.C.
Article 2.  As a large segment of customers who would be
affected by the changes, we believe there are likely to be
other areas of concern that will  surface as our review
continues.

     In the meantime, AALL appreciates the opportunity to
provide these written comments on proposed Article 2B.  We
urge the Drafting Committee to reconsider provisions which
permit such radical restructuring of rights in information
and expression.  If you so recommend, a representative of
the American Association of Law Libraries will attend a
future meeting of the Drafting Committee to discuss our
concerns further.


Sincerely,


Robert L.  Oakley
Washington Affairs
Representative

Jim Heller, Chair
Copyright Committee