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Uniformity, Choice of Law, and Software Sales

44 Pages Posted: 6 Mar 2000  

Bruce H. Kobayashi

George Mason University - School of Law

Larry E. Ribstein

University of Illinois College of Law (deceased); PERC - Property and Environment Research Center

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Abstract

This article examines the ongoing controversy over the Uniform Computer Information Transactions Act (UCITA) which has been adopted by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The Act emerged after opposition to a new Article 2B of the Uniform Commercial Code (UCC 2B) led to the withdrawal of the American Law Institute from its joint project with NCCUSL. This article argues that the debate over particular terms focuses on the wrong issues and may ultimately be of little consequence. The important issues concern the forces of jurisdictional competition and the role of choice of law. We argue that the law should facilitate the parties' ability to choose the governing law rather than being forced to accept a single uniform law that emerges from an imperfect political process. Moreover, whatever NCCUSL or the ALI decide to do, jurisdictional competition is likely to play an important role in shaping the law. States interested in attracting and retaining information technology companies can pass statutes that favor freedom of contract and enforcement of computer software licenses. If adoption of a single standard proves to be desirable, firms will tend to move toward this standard even if state laws differ and the "uniform" law is adopted in only a few states.

JEL Classification: K12, O34, D72

Suggested Citation

Kobayashi, Bruce H. and Ribstein, Larry E., Uniformity, Choice of Law, and Software Sales. George Mason Law Review, Vol. 8, pp. 261-306, Winter 1999. Available at SSRN: https://ssrn.com/abstract=215730 or http://dx.doi.org/10.2139/ssrn.215730

Bruce H. Kobayashi (Contact Author)

George Mason University - School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

Larry Edward Ribstein

University of Illinois College of Law (deceased)

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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