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Prior to Uniform Commercial Code (UCC) and now Uniform Computer Information Transactions Act (UCITA), the regulation of interstate commerce can be seen through the commerce clause of Article 1 Section n8 of the Constitution. This clause provided the powers to the congress to regulate commerce with foreign Nations, and with the Indian Tribes (U.S. Constitution, 2010). Among the examples of exercising such power was the passage of Interstate Commerce Act of 1887, which provisions applied to any common carrier or carriers engaged in the transportation of passengers across the united States (Civics Online, 2010).
Although there are potentially overlapping areas between Article 2 of UCC and UCITA, there are key distinctions between the two acts. The first and the main distinction are the types of goods involved in the transactions. In Article 2 of UCC, the law governs the sale of tangible goods, in which information transferred in computer information transaction, e.g. software purchase, does not necessarily meet the definition of a good. (Grier, Keane, & Gilbert, 2001). UCITA, on the other hand, as the title of the acct implies are totally concerned with governing the transactions related to computer information. Thus, if the goods fall under the definition of computer information, defined as information in electronic form which is obtained from or through the use of a computer or which is in a form capable of being processed by a computer , then it is automatically governed by UCITA (Grier, et al., 2001). Additionally, UCC is mainly concerned with selling goods, while UCITA governs licensing as a form of commercial transaction and a particular type of transfer of rights.
The legal differences between selling and licensing are constituted in the amount of rights transferred from owner to consumer. Sales involve a complete transfer of ownership rights from the owner to the consumer, or the parties in the contract. Accordingly, such transfer of ownership gives the right for the buyer to lend, rent, resell, the purchased product. Licensing, on the other hand, involves a limited transfer of rights to use (CNI, 2001). Thus, the purchaser does not own the product, where ownership rights are retained by the seller.
It can be stated that the potential overlapping areas might have caused legislators to consider drafting a separate act in UCITA, rather than modifying Article 2 of UCC. Considering the developments in the area of computer information, in which for example the medium itself has changed over the last 10 years, with instances emerged when such medium is absent, it can be assumed that further modification for the act will be necessary. In that regard, it might be more feasible to take a different direction for computer related information, separating them from tangible goods. There is a controversy currently on the right given to software developers, as opposed to consumers, many of which occurred at the stages of drafting UCITA. Accordingly, the introduction of new terminology, applicable to the case of computer information might have created different meanings when applied within the context of UCC. An example of the latter can be seen through such aspects as defects, and a breach of contract (Kaner, 2000).
References
Civics Online. (2010). Transcript of Interstate Commerce Act (1887). Our Documents.
CNI. (2001). Licensing vs. Buying Information: Legal and Policy Implications. The Coalition for Networked Information. Web.
Grier, R. L., Keane, N., & Gilbert, P. A. (2001). Uniform Computer Information Transactions Act: Bringing Commercial Law into the 21st Century. Richmond Journal of Law & Technology, 8(1).
Kaner, C. (2000). Why You Should Oppose UCITA. Bad Software. Web.
U.S. Constitution. (2010). U.S. Constitution Article 1 Section 8. U.S. Constitution Online.
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