It's also likely that 2B law will be applied to international licenses since the trend in international law is to favor choice-of-law provisions.

Amelia Boss, 2B commissioner, vice chair of the ABA Business Law Section and the U.S. delegate to the U.N. Commission on International Trade Law on Electronic Commerce Issues, says that if 2B is widely accepted in the United States as part of the UCC, "it will potentially have great influence worldwide" in the development of similar laws. Internationally, she says, "people seem to be waiting to see what happens with 2B. They've noted the controversy over 2B and have taken a hands-off approach, waiting to see how the United States resolves these issues."

Braucher, however, thinks 2B won't become a world model because it doesn't meet the well-developed standards of fairness seen in Europe and Japan.

Nimmer emphasizes that 2B doesn't enforce terms designating forums that are unreasonable or unjust, nor does it try to get around mandatory state consumer protections. It prevents unnecessary litigation on the procedural issue of where disputes should be settled. It also safeguards publishers from having to travel all over the world to litigate.

The Big Freeze
Encompassing legislation like 2B raises many important issues--hybrid traditional/digital technologies, leaseholder and bankruptcy rights, library restrictions on archival of information in digital formats, legitimate business archival needs, attribution procedures, warranty protections under the Magnuson-Moss Act, software manuals and express warranties, promotion requirements, developer versus publisher rights, restraints on third-party support, conflicts with the Electronic Transactions Act of Article 2 and more (see "URLs of Note," page 68).

But of those that remain, two business concerns stand out--restraints on both speech and interoperability. Key 2B advocates seem convinced that state courts won't enforce shrink-wrap license terms that prevent criticism or review of products. Similarly, though with slightly less assurance, they don't think the courts will enforce terms that ban the kind of reverse-engineering needed to ensure product interoperability.

Business users and advocates aren't quite so certain. They see the committee's failures to protect these activities explicitly in the actual statute as chilling both speech and interoperability, because many users and software developers will play it safe and curtail rights they might otherwise exercise.

Business users take little solace in the fact that the NCCUSL recommended explicit language limiting contractual terms that are inconsistent with freedom of expression, reverse engineering or other fundamental public policies--primarily because references to these policies were relegated to accompanying notes by the committee. ALI member McManis says that many people believe these notes "aren't worth the paper they are written on" because legislatures won't necessarily adopt the notes. In addition, speech is often limited by contracts, such as nondisclosure agreements.

Reverse-engineering--even if pursued strictly to achieve software interoperability--might also be subject to license restrictions. Most people would find it a howler for a tube of toothpaste to include a license that said by opening the cap you agree not to reverse-engineer the toothpaste, says Washington University's McManis. But many legal experts believe 2B's enforcement of reverse-engineering bans could be used to nullify existing rulings that reverse-engineering is a fair use of information under copyright law. This is because code is both protected (in human-readable form) as a trade secret and publicly disclosed (in machine-readable form) under copyright law.

Similarly, businesses that might otherwise legitimately archive a week, month or year of data offsite may find themselves in violation of shrink-wrap terms limiting the number of software copies that can be made.

Drafters say 2B text doesn't list protected fundamental policies because courts tend to view such lists as exhaustive even if the drafters explicitly note otherwise. Nimmer adds that "there is no case law enforcing contract terms that limit free speech" in publicly distributed information. He urges that the states have been involved in contract law for more than 100 years and contract issues are clearly state issues, not federal ones.

But if that's the case, contract law will be preeminent except where federal law clearly preempts it. So, the question becomes whether federal law unmistakably grants certain software rights.

Is there, for example, a fundamental federal right to publish software reviews if a shrink-wrap license bars such activity?

Some attorneys think not.

If they are right, it may be time for you to start building or ramping up your own corporate test lab and for the staff of Network Computing to hire a resumé service.

Send your comments on this article to Christy Hudgins-Bonafield at cbonafield@nwc.com.