UCITA in the International Marketplace: Are We About to Export Bad Innovation Policy?

Abstract

This article, based on a speech given at Brooklyn Law School, examines the impact that the Uniform Computer Information Transactions Act (UCITA) will have in the international arena. After reviewing the advantages of facilitating information exchange with uniform licensing law, the article looks at the cost to public access interests and to the goal of promoting innovation. In contrast to protection based on copyright, patent, and trade secrecy laws, contractually-imposed obligations are less likely to release information into the public domain and are more likely to bind remote users and to require licensees to forgo particular usages. These obligations can also be made to endure forever, which is not possible in regimes constrained by the limited times provision of the Constitution. Although UCITA is made subject to constitutional preemption analysis and obligations can also be suspended if clearly contrary to public policy, it lacks any guidance to help courts?or contracting parties?to understand the scope of these limitations. The article goes on to argue that in the international context, these problems are exacerbated. Because UCITA envisions a variety of extraterritorial applications, it may be enforced in the courts of nations that lack firm public policies favoring public access to information, and in courts that do not understand that constitutional preemption analysis as UCITA's primary safeguard for the public domain. The article concludes that UCITA could be substantially improved by adopting its own information policy as an organic part of the document, embedded systematically into its provisions.