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UCITA would codify the view that traditional software distributions are licenses, not sales. Section 102(43), (44) of the UCITA (1999 Official Text) recognized mass marketed binary software transactions as licenses.2 UCC Article 2 covers only contracts for sale of goods, so computer software is not expressly covered by Article 2. Computer software is different considering that it is so easily copied, thus it needs special protection. It is one of a few commercial enterprises that entirely depend on a single traditional copyrighted work such as a book, musical recording, motion picture, or painting.3 Licensing thus becomes very important. Licensing enables the developer to control software distribution, to price software to reflect its value to the user, and to ensure that users are subject to developer’s limitation of liability provisions. However, there is a legislative gap that has forced courts to apply the UCC to license transaction, which it was never meant to address. Hence, the UCITA.
The overlap of terminology between sale and license has caused confusion within the courts and has led to some acceptance of a license as a sale in some jurisdictions. The courts have used several methods to establish that a sale of software is the sale of a good within the meaning of the UCC Article 2. The simplest method of establishing software as a sale is when the parties agree in their briefing that Article 2 applies to the licensing of their software. Court would thus only have to look at the contract to see what rules would apply. For other courts, the analysis is more in-depth. In Architectronics, Inc v. Control Systems, the court applied UCC Article 2 to a software development transaction for a license of the software. The court held that the applicability of Article 2 is not defeated by use of license in lieu of sales if license provides for transfer of some of incidents of goods ownership. In Microsoft Corp. v. DAK Industries, the court looked to the economic realities of the particular arrangement. Upon this analysis, the court found that DAK had a right to sell the software and thus the arrangement was similar to a purchase of goods thus indicating that it was a sale, not a license to use.4
Many of the provisions in the UCITA were first proposed as a modification to Article 2 of the UCC. Why do you think the drafters decided to propose it as a separate and distinct uniform act
To be effective, a provision must be approved both by the NCCUSL and the ALI. Since the final draft of Article 2B as proposed was rejected by the American Law Institute or ALI, the required approval of both bodies was thus lacking. As a consequence, the NCCUSL renamed it as the now UCITA.5
Is the International Court of Justice the first world court
No. The ICJ began work in 1946 as the successor to the Permanent Court of International Justice, the first world court.6