ProCD, Inc. v. Zeidenberg, 908 F. Supp. 640, 651 (W.D. Wisc. 1996), rev’d, 86 F.3d (7th Cir.
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1996). Although the license for a shrink-wrapped consumer item was held to be governed by U.C.C. art. 2
(sales), courts may not necessarily apply the U.C.C. to other licenses.
See, e.g., Turner Entertainment Co. v. Huston, Court of Appeal of Versailles [France], Combined
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Civil Chambers, Decision No. 68, Roll No. 615/92 (Dec. 19, 1994) (as translated in 16 Ent. L. Rep.
(March 1995)) (declining to enforce employment contract between U.S film studio and U.S. director and
screenwriter due to French public policy favoring moral rights). See also 1 MELVILLE B. NIMMER AND
PAUL EDWARD GELLER, INTERNATIONAL COPYRIGHT LAW AND PRACTICE 198-99 (1993) (discussing
enforcement of employment “work for hire” agreements outside United States generally).
Article 2B-102(19) (May 5, 1997 Draft). See generally Raymond T. Nimmer, Issues: Meeting the
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Information Age (May 3, 1996) <http://www.law.uh.edu/ucc/2b>.
On May 19, 1997, ALI adopted an amendment to the current draft of section 2B-308, which deals
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with mass market licenses. The amendment reads: “In mass-market licenses, a term that is inconsistent
with applicable provisions of the copyright law cannot become part of a contract” under the mass-market
section. Transcript, ALI Annual Meeting (May 19, 1997), pp. 33-34. An earlier version of the amendment
specifically prohibited terms that are inconsistent with section 102(b) of the Copyright Act, the codification
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unenforceable in another. The ProCD case itself was based on a federal appeals court’s reading
of the Wisconsin Uniform Commercial Code.
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A related jurisdictional issue raised by proponents is that even if state contract law is
relatively consistent, many databases are marketed on a global scale. The contract laws of other
countries tend to diverge more widely from the standard U.S. model, sometimes placing greater
restrictions on freedom of contract based on each country’s conceptions of public policy.
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In addition, the enforceability of such contracts is not well settled, and has generated
controversy. The ProCD case is the view of a single court of appeals, and may not prove to be
the ultimate judicial word on the subject. Meanwhile, the ongoing project for the reform of the
Uniform Commercial Code, administered by the American Law Institute (ALI) and the National
Conference of Commissioners on Uniform State Laws (NCCUSL), includes a proposed Article
2B which would govern transactions in software and licenses in information. “Information” is
defined to include data, databases, and “any intellectual property or other rights in information.”
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The issue of whether and to what extent such contracts can provide protection for data, or vary
exceptions and limitations contained in the Copyright Act, is under debate.
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