Before the UCC and the UCITA, commerce clause was one of the first, and most significant, of the U. S. governments attempts to promote uniformity in commercial laws from state to state which is found in article 1, section 8 of the U. S Constitution “It provides Congress with authority to regulate not only business, but any “intercourse” conducted between parties situated in different States” (Gibbons v. Ogden ,1824) .
The major factor that differentiates between the Uniform Commercial Code and UCITA is that, the UCC Article 2 facilitates the sale, shipment and delivery of tangible goods. Whereas, the “UCITA” is intended to facilitate the “licensing” of intangible computer-related intellectual property, with an emphasis on permitting owners of software with the ability to maintain control over their own intellectual property forever (http://www. justanswer. com, 2009).
UCITA adopts contract rules that validate “shrinkwrap” or “clickwrap” terms. It broadly legitimizes mass-market end-user license agreements (EULAs), which producers employ as a means to try to limit customers’ rights to transfer and use digital products and services agreements( Jean Braucher,2001). A sale is a complete and final transfer, of all rights, title and interest and property identified in the contract, from a seller to a buyer as per the dictionary meanings present at a dozen places (http://www. justanswer. com, 2009).
Whereas, a license is the right to use the property of another under certain agreed upon conditions; it is a legal agreement which permits to exercise specified rights to work. A license can be to operate with some one’s name , brand for which the user/reseller pays a certain fees, i. e. the license fee. The user/payer of the license fee doesn’t owns it but only can leverage it till licensing authority wants it to. There are two reasons why drafters decided to propose UCITA as a separate and distinct uniform act:- 1.
Computer information is quite different from a normal “good” governed by Article 2. 2. UCITA goes far beyond the simple sale of software as it also covers development, licensing, support, and maintenance (answers. yahoo. com, 2009).
Jean Braucher(2001) Briefing Paper for the National Conference of State Legislatures Prepared for Presentation at Spring Meeting, Costa Mesa, CA. Retrieved May 20,2009 from http://www. ncsl. org/programs/lis/cip/CIPCOMM/braucher0301. htm Socrateaser (2009). Retrieved May 20, 2009, from http://www. justanswer. com/questions/1s2yh-ucc-ucita-one-first