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Many UCC 2B supporters say they're under attack because consumer and business advocates desperately want the software industry regulated. 2B Committee Reporter Ray Nimmer sees the problem as DPMA--Don't-Preclude-Means-Authorized. "It's a style of argument that says if 2B does not expressly preclude a contract term, then that means that article authorizes it." What is really happening, he says, is that the committee is refusing to regulate this industry.

Nimmer and others say that 2B is actually more user-friendly than existing law and that detractors have become purveyors of gross misinformation--raising unwarranted specters like that of the courts enforcing non-negotiated, shrink-wrap prohibitions on public criticism.

Draft opponents say 2B is biased because the software industry--and not user organizations--have dominated in number and funding through most of the process. When consumer and business organizations began participating some say they had a hard time even finding out where and when meetings were to be held. They grouse about decisions presented as fait accomplis and about spending scarce nonprofit dollars to travel to meetings only to be told public comment wasn't in order. IEEE-US says, for example, that it might take half a person's time just to track the confusing array of constant 2B revisions, some appearing seemingly out of the blue.

George Cooke, a lawyer for Home Box Office, says his personal opinion is that 2B departs from today's laws in favor of the software industry. He says 2B lets publishers impose non-negotiated license terms, unreasonably limits the use of information and caps what can be tremendous business damages at the price of the software. "As the representative of a company that both buys and publishes information, I see such one-sided rules as neither needed nor desirable." Cooke says those speaking out against 2B have largely been ignored by the drafters and that "this is special interest legislation at its most dangerous."

But ALI member and Arizona law professor Jean Braucher cautions that pragmatism may better explain 2B's software industry deference. The committee knows there is no hope of passing a uniform law "over the objections of the software industry," and the "software industry isn't willing to give up the 5 percent needed to give this some semblance of balance. It's like Microsoft's corporate culture of constructive paranoia, (like)demanding 110 percent or else a fight (fighting) to the death."

--Christy Hudgins-Bonafield