《法学相关资料合集》（英文版） Beyond Preemption: The Law and Policy of Intellectual Property.pdf_P6-P10

CALiFORNiA LAW REVIEM TVoL. 87: 111 terms that conflict with contract law. But they will bar some license terms that Article 2B purports to validate. And even if Article 2B isn t adopted, these limits will play an important role in regulating the growth of contract law In Part I, I briefly explain why the potential for conflict between contract nd intellectual property law arises at all. In Part Il, I suggest that while preemption has an important role to play in resolving this conflict, it will not and cannot solve the problem alone. Finally, in Part Ill, I examine court decisions that have applied"public policy rationales to reject or avoid enforcing objectionable contract terms. I also offer some thoughts on how some key Article 2B provisions will fare under such public policy tests. Specifically, I suggest that even if Article 2B is adopted, its effect on intellectual property licensing will be limited by the existence of numerous rules from outside contract law Before I begin, a word about my methodology is in order. My goal this Article is largely descriptive and predictive, rather than normative. Elsewhere I have argued that there is good reason to be skeptical about the expansionist owners. II Most other commentators have taken a similar position 12 But whether one thinks that the changes wrought by Article 2B are good or bad, we will have to confront the difficult task of drawing a line between conflicting aspects of intellectual property policy and contract law. I am not arguing(here)for the creation of a new public policy exception to state contract law for cases in which contract law touches on matters of intellectual property concern. Rather, I am uggesting that the public policy jurisprudence already exists, and we can only understand article 2B in its context The Tension Between Article 2B and Intellectual Property Article 2B is a big document, and as the papers in this Symposium demonstrate, its interaction with intellectual property law is complex. 13 While S Cal L. Rev. 1239, 1274-92(1995)hereinafter Lemley, Shrinkwrap licenses] C3如pb9m用是p 9%R如m137Fm知mmh1匙 s I ation ang ane from the Au stess con thac, unless soe article 2B appers unto arsing the scope provisions of Article 2B is worthy of 3(a(1)(Draft, Aug. 1, 1998). A license tithe o f opti so ona T ths trass tian ssible transaction in information is a"license, even those that everyone would

CALIFORNIA LAW REVIEW [Vol. 87:111 terms that conflict with contract law. But they will bar some license terms that Article 2B purports to validate. And even if Article 2B isn’t adopted, these limits will play an important role in regulating the growth of contract law. In Part I, I briefly explain why the potential for conflict between contract and intellectual property law arises at all. In Part II, I suggest that while preemption has an important role to play in resolving this conflict, it will not and cannot solve the problem alone. Finally, in Part III, I examine court decisions that have applied “public policy” rationales to reject or avoid enforcing objectionable contract terms. I also offer some thoughts on how some key Article 2B provisions will fare under such public policy tests. Specifically, I suggest that even if Article 2B is adopted, its effect on intellectual property licensing will be limited by the existence of numerous rules from outside contract law. Before I begin, a word about my methodology is in order. My goal in this Article is largely descriptive and predictive, rather than normative. Elsewhere, I have argued that there is good reason to be skeptical about the expansionist vision of contract law as a supplement to the power of intellectual property owners.11 Most other commentators have taken a similar position.12 But whether one thinks that the changes wrought by Article 2B are good or bad, we will have to confront the difficult task of drawing a line between conflicting aspects of intellectual property policy and contract law. I am not arguing (here) for the creation of a new public policy exception to state contract law for cases in which contract law touches on matters of intellectual property concern. Rather, I am suggesting that the public policy jurisprudence already exists, and we can only understand Article 2B in its context. IThe Tension Between Article 2B and Intellectual Property Article 2B is a big document, and as the papers in this Symposium demonstrate, its interaction with intellectual property law is complex.13 While 11 .See Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex. L. Rev. 989, 1048-72 (1997) [hereinafter Lemley, Economics of Improvement]; Mark A. Lemley, Romantic Authorship and the Rhetoric of Property, 75 Tex. L. Rev. 873, 900-03 (1997) [hereinafter Lemley, Romantic Authorship ]; Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239, 1274-92 (1995) [hereinafter Lemley, Shrinkwrap Licenses]. 12 .See, e.g., Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of Rights Management, 97 Mich. L. Rev. (forthcoming 1998); Niva Elkin-Koren, Contracts in Cyberspace: Rights Without Laws, 73 Chi.-Kent L. Rev. (forthcoming 1998) [hereinafter Elkin-Koren, Contracts in Cyberspace]; Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract, 12 Berkeley Tech. L.J. 93, 106-13 (1997) [hereinafter Elkin-Koren, Copyright Policy]; Karjala, supra note , at 519-20; Jessica Litman, Revising Copyright Law for the Information Age, 75 Or. L. Rev. 19, 25-30 (1996); Rice, supra note , at 561-67. For a contrary view, see Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine, 76 N.C. L. Rev. 557, 592 (1998); Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. Chi. Legal F. 217, 228. 13 .Merely parsing the scope provisions of Article 2B is worthy of one or more papers unto itself. As near as I can determine from the August Draft, the provisions of Article 2B apply to all “licenses” of information and all software and access contracts, unless specifically excluded. See U.C.C. § 2B-103(a)(1) (Draft, Aug. 1, 1998). A license is defined broadly to mean virtually any express contract relating to information unless it is an unconditional transfer of ownership of informational property rights. See id. § 2B-102(a)(28). Indeed, a transaction is a “license”—and therefore within the scope of Article 2B—even if it transfers title to a copy, so long as the transaction itself “expressly grants less than all informational rights in the information.” Id. This means that virtually every possible transaction in information is a “license,” even those that everyone would

1999] BEYOND PREEMPTION Article 2B does many unobjectionable things—and even some good things14—that have nothing to do with intellectual property law, the critical thing about Article 2B for my purposes is its dramatic expansion of the scope and power of contracts, particularly contracts drafted by software vendors and intellectual property owners. This expansion leads to potential conflicts and tensions between Article 2B and intellectual property law. In this Part, I discuss the ways in which Article 2B expands the scope and power of contracts, as well as the conflicts with intellectual property law that this expansion may create. A. Article 2B’s Expansion of the Scope and Power of Contracts Article 2B expands the scope and power of contracts in three ways.15 First, Article 2B reverses the well-settled rule of existing law that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic agree are sales of goods under current law. Indeed, it would appear impossible to sell a book under the literal language of this provision. While the reporter’s note 26 to section 2B-102 states that the term “license” “does not include a sale of a copy of a book since there is no express contractual restriction on the use of the information,” id. § 2B-102 reporter’s note 26, this reflects a misunderstanding about intellectual property law. A sale of a book does not grant the buyer ownership of the copyright in the book, and books typically make that clear on the copyright page. A sale of a book is, therefore, within the literal definition of a “license.” Transactions involving copyrights, trade secrets, and the right of publicity are certainly within the scope of Article 2B. Trademarks and patents appear at first to be excluded from coverage, see id. § 2B-104(2), but we are then told that they will be included if “associated with a license or software contract that is otherwise covered by this article . . . .,” id. Since under the definition of a “license” any transaction in information is almost certainly included, at the very least, software patents, and arguably a much broader group of patents, also fall within Article 2B. What constitutes software, and which patents are “software patents,” is itself far from clear. See 14 .Chief among the good aspects of Article 2B is its establishment of uniform rules regarding on-line and electronic contracting. This may truly be an area where having a uniform rule matters more than what the rule actually says. Cf. Peter A. Alces & Harold F. See, The Commercial Law of Intellectual Property 346-47 (1994) (noting the importance of certainty in commercial law). But see A. Michael Froomkin, 2B as Legal Software for Electronic Contracting: Operating System or Trojan Horse, 13 Berkeley Tech. L.J. (forthcoming Dec. 1998) (challenging the Article 2B framework for digital signatures). 15 .Article 2B has claimed a posture of “aggressive neutrality” with respect to federal intellectual property law. See U.C.C. art. 2B Preface at 48 (Draft, Feb. 1998); see also U.C.C. art. 2B Preface at 33 (Draft, Apr. 1998) (“This Article does not concern, and does not alter any law creating or limiting intellectual property rights or privileges in information.”). In fact, however, a change in the terms of contract law necessarily will affect the contract-intellectual property interface. Such a change cannot be considered “neutral” in application, even if it is neutral in intent, because the balance of rights between vendors and users is necessarily a function of all the legal rules that apply to them. Further, the draft concedes that it is not always neutral even in intent: “[I]n several situations, provisions push against explicit federal rules insofar as reasonably possible.” U.C.C. art. 2B Preface (Draft, Aug. 1, 1998). The preference of the drafters for some federal rules and not others might be discerned in the rather schizophrenic approach Article 2B takes toward preemption. On the one hand, Article 2B asserts that state law should be made consistent with federal law, because to do otherwise would be to “create[] true traps for the unwary.” Id. On the other hand, the same page of the draft rejects any effort to inject other federal principles into the debate, claiming “neutrality,” see id., despite instruction by both the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL) to take account of those federal policies. See Charles R. McManis, The Privatization (or “Shrink-Wrapping”) of American Copyright Law, 87 Calif. L. Rev. 173 (1999) (discussing the ALI instruction); Electronic Mail from Harvey Perlman, Nebraska Commissioner on Uniform State Laws, NCCUSL, to Rochelle Cooper Dreyfuss (Sept. 22, 1998) (on file with California Law Review) (discussing NCCUSL instruction). Contrast this approach with Article 9 of the Uniform Commercial Code (U.C.C.), which contains “stepback” provisions for cases in which its provisions on security interests overlap with federal law, including federal intellectual property law. See U.C.C. §§ 9-104, 9-302 (1994). For a discussion of inconsistencies in the Article 9 approach, see Alice Haemmerli, Insecurity Interests: Where Intellectual Property and Commercial Law Collide, 96 Colum. L. Rev. 1645 (1996)

CALIFORNIA LAW REVIEW [Vol. 87:111 realities of the exchange.16 Under Article 2B, a transaction is automatically a license unless it constitutes an assignment of the intellectual property right itself.17 And if it is a license, Article 2B applies.18 Article 2B thus creates a new meaning of “licensing” information. This meaning is unknown to copyright or patent law, and encompasses transactions that intellectual property has always dealt with as 16 . In the context of traditional mass-market transactions for software, the totality of the circumstances surrounding the transaction strongly suggests that the transaction is in fact a sale rather than a license. There is no bargaining over license terms. The purchaser (licensee?) commonly obtains a single copy of the software, along with documentation, in a box at a retail software store. The box contains a single price, which the purchaser pays up front, and which constitutes the entire payment for the “license.” The purchaser also pays sales tax on the “license.” The license does not run for a definite term and need not be renewed, but is perpetual unless terminated by the vendor (something that almost never occurs). In light of these indicia, and because most purchasers think they are “buying” a physical copy of a program, almost all courts and commentators that have considered the issue have concluded that a shrinkwrap license transaction is a sale of goods rather than a license, and that it is therefore covered by Article 2 of the current U.C.C. See, e.g., In re Dak Indus., Inc., 66 F.3d 1091, 1094 (9th Cir. 1995); Step-Saver Data Sys. v. Wyse Tech., 939 F.2d 91, 99-100 (3d Cir. 1991); Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 675-76 (3d Cir. 1991); RRX Indus., Inc. v. Lab-Con, Inc., 772 F.2d 543, 546 (9th Cir. 1985); Synergistic Techs., Inc. v. IDB Mobile Communications, Inc., 871 F. Supp. 24, 29 (D.C. 1994); Arizona Retail Sys. Inc. v. Software Link, Inc., 831 F. Supp. 759, 762 (D. Ariz. 1993); Hospital Computer Sys. Inc. v. Staten Island Hosp., 788 F. Supp. 1351, 1360 (D.N.J. 1992); In re Amica, Inc ., 135 B.R. 534, 552-53 (Bankr. N.D. Ill. 1992); Neilson Bus. Equip. Ctr. Inc. v. Italo V. Monteleone, 524 A.2d 1172, 1174-75 (Del. 1987); Photo Copy, Inc. v. Software, Inc., 510 So. 2d 1337, 1338-39 (La. Ct. App. 1987); USM Corp. v. Arthur D. Little Sys. Inc., 546 N.E.2d 888 (Mass. App. Ct. 1989); Dreier Co., Inc. v. Unitronix Corp., 527 A.2d 875, 879 (N.J. Super. Ct. App. Div. 1986); Schroders, Inc. v. Hogan Sys., Inc., 522 N.Y.S.2d 404, 405-06 (Sup. Ct. 1987); Communications Groups, Inc. v. Warner Communications Inc., 527 N.Y.S.2d 341, 343-44 (Civ. Ct. 1988); Lemley, Shrinkwrap Licenses, supra note , at 1244 n.23; Bonna Lynn Horovitz, Note, Computer Software as a Good Under the Uniform Commercial Code: Taking a Byte Out of the Intangibility Myth, 65 B.U. L. Rev. 129 (1985); cf. Applied Info. Management, Inc. v. Icart, 976 F. Supp. 149, 155 (E.D.N.Y. 1997) (finding that whether a transaction denominated a “license” was in fact a sale conveying ownership was a disputed question of fact). But see Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208, 212 (E.D.N.Y. 1994) (assuming without analysis that a mass-market transaction was a license rather than a sale). Of course, the economic realities of a transaction may change over time. On-line distribution looks less like a traditional sale of goods than does distribution through a store or mail order catalog; this could change the analysis under existing law. Cf. Joel Rothstein Wolfson, Information Transactions on the Information Superhighway: It’s Not Just Software Law Anymore, 6 J. Proprietary Rts. 1, 3-5 (1994) (arguing that on-line contracts have fewer enforcement problems than real-world contracts). And some on-line transmission schemes look more like performances than the distribution of copies, though of course they may be both. Cf. Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. Dayton L. Rev. 547, 550-62 (1997) [hereinafter Lemley, Overlapping Copyrights] (arguing that Internet transmission is a copy, a distribution, and a public performance). 17 .The definition of a license is, [A] contract that authorizes access to or use of information or of informational rights and expressly limits the contractual rights or permissions granted . . . or expressly grants less than all informational rights in the information. A contract may be a license . . . whether or not the contract transfers title to a copy. U.C.C. § 2B-102(28) (Draft, Aug. 1, 1998). Since the intellectual property owner has effective control over the terms of the “contract,” see infra notes - and accompanying text, this means that so long as the intellectual property owner transfers less than her complete ownership interest in the information, the transaction will be deemed a license. For a discussion of this important shift in approach, see David A. Rice, Digital Information As Property and Product: U.C.C. Article 2B, 22 U. Dayton L. Rev. 621 (1997); cf. Lunney, supra note , at 5 (arguing that “the word ‘license’ is simply inaccurate” in this context). 18 .See U.C.C. § 2B-103(a)(1) (Draft, Aug. 1, 1998). The drafters assure us that consumers shouldn’t be worried about this because “[t]he end user is often benefited by a license rather than a sale transaction.” Id. § 2B-208, reporter’s note 5(a). This is a bit disingenuous. Sales convey a number of rights to users under federal intellectual property law; they may exhaust some of the seller’s rights with respect to the intellectual property embodied in the product sold. See 17 U.S.C. § 109(a) (1994). Licenses typically purport to do no such thing. Even the examples cited by reporter’s note 5(a) in support of the proposition that licenses benefit consumers suggest exactly the opposite—they merely indicate that licensors may be willing to give away some part of what federal law would require them to were the transaction a sale

1999] BEYOND PREEMPTION sales.19 Second, Article 2B redefines what constitutes a contract, abandoning the focus on offer and acceptance, and therefore on the agreement at the time the parties conclude a deal, in favor of a rule that the intellectual property owner’s standard form terms will be enforced, even if they are contained in a “shrinkwrap” or “clickwrap” license that the buyer cannot see until the transaction has already occurred.20 In so doing, Article 2B adopts a view that is decidedly in the minority among current courts,21 and that is dramatically to the benefit of the drafters of 19 .See Nimmer et al., supra note , at 34-40 (discussing this shift); Reichman & Franklin, supra note , at 49 (same). Article 2B’s drafter Ray Nimmer has elsewhere pointed out the critical distinction between sale and license for copyright purposes. See Raymond T. Nimmer, Article 2B: An Introduction, 16 J. Marshall J. Computer & Info. L. 211, 218-19 (1997). 20 .Article 2B provides that terms are considered part of a contract if the buyer “manifest[s] assent.” U.C.C. § 2B-208(a) (Draft, Aug. 1, 1998). This phrase is broad enough to include engaging in the “affirmative conduct” of using the information one has already bought, if the shrinkwrap license so provides. See id. § 2B-111(c); id. § 2B-111 reporter’s note 3. Indeed, no person need be involved at all in the assent process. See id. § 2B-111(c); id. reporter’s note 5. The reporter’s notes to Article 2B section 2B-111 also provide that contract terms can be included even without a manifestation of assent, simply by giving prior notice to the other party of the terms. See id. § 2B-111 reporter’s note 6. This too represents a change from current law. See, e.g., Authors & Newspapers Ass’n v. O’Gorman Co., 147 F. 616, 619-20 (D.R.I. 1906) (holding that merely including “license” terms on the inside cover of a book did not create a contract on those terms). By contrast, in some on-line “clickwrap” licenses, the buyer can see the license terms before entering into the contract. Such licenses are more likely to be enforceable under traditional contract doctrine. See, e.g., Hotmail Corp. v. Van Money Pie Inc., 47 U.S.P.Q.2d 1020 (N.D. Cal. 1998). 21 .Numerous courts have rejected shrinkwrap licenses as unenforceable. See Step-Saver Data Sys. v. Wyse Tech., 939 F.2d 91, 98-100 (3d Cir. 1991); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 270 (5th Cir. 1988); Novell, Inc. v. Network Trade Ctr., Inc., No. 95Cv00523 (D. Utah 1997); Morgan Labs., Inc. v. Micro Data Base Sys., Inc. 41 U.S.P.Q.2d 1850 (N.D. Cal. 1997) (refusing to allow a shrinkwrap license to modify a preexisting contract); Arizona Retail Sys., Inc. v. The Software Link, Inc., 831 F. Supp. 759, 764-66 (D. Ariz. 1993); Foresight Resources Corp. v. Pfortmiller, 719 F. Supp. 1006, 1010 (D. Kan. 1989); see also L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright 220 (1991) (concluding that shrinkwrap licenses are almost certainly unenforceable); Lemley, Shrinkwrap Licenses, supra note , at 1248-59 (discussing these cases); cf. Microstar v. Formgen, Inc., 942 F. Supp. 1312, 1317 (S.D. Cal. 1996) (noting but not resolving the issue), aff’d in part, rev’d in part on other grounds, 1998 WL 598544 (9th Cir. Sept. 11, 1998). While these decisions were rendered on various grounds, a typical conclusion is that the contract was formed when the software was exchanged for money, and that the terms of the contract do not include a shrinkwrap license that was only brought to the attention of the buyer after the exchange. See Step-Saver, 939 F.2d at 98-100. The Seventh Circuit is the only court to have enforced a shrinkwrap license. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996); cf. Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1150 (7th Cir. 1997) (extending ProCD in a non-shrinkwrap case), cert. denied, 118 S. Ct. 47 (1997). The Hill decision is a sufficiently radical departure from traditional principles of contract formation that every Article 2B draft until the present one rejected it. See U.C.C. § 2B-111(b) (Draft, Apr. 1998) (“[M]ere retention of a record without objection is not a manifestation of assent.”). Section 111(b) was removed from the current draft, a significant further change in governing law outside the Seventh Circuit. Lunney contrasts Hill with Authors & Newspapers Ass’n v. O’Gorman Co., 147 F. at 619-20, in which the court rejected an attempt to impose contractual terms on the sale of a copyrighted book by placing those terms on the inside cover. See Lunney, supra note . The Authors & Newspapers court noted that “affirmative proof of communication, additional to that afforded by the mere fact that a notice is in the book, is essential to show that the purchaser agreed.” Authors & Newspapers, 147 F. at 619; see also Lunney, supra note , at 7 (endorsing this result). For criticism of ProCD on contract law grounds, see, e.g., Michael J. Madison, “Legal Ware”: Contract and Copyright in the Digital Age , 67 Fordham L. Rev . (forthcoming 1999); Apik Minassian, The Death of Copyright: Enforceability of Shrinkwrap Licensing Agreements, 45 UCLA L. Rev. 569 (1997); Jason Kuchmay, Note, ProCD, Inc. v. Zeidenberg: Section 301 Copyright Preemption of Shrinkwrap Licenses—A Real Bargain for Consumers?, 29 U. Tol. L. Rev. 117 (1997); Kell Corrigan Mercer, Note, Consumer Shrink-Wrap Licenses and Public Domain Materials: Copyright Preemption and Uniform Commercial Code Validity in ProCD v. Zeidenberg, 30 Creighton L. Rev. 1287 (1997); Robert J. Morrill, Comment, Contract Formation and the Shrink Wrap License: A Case Comment on ProCD, Inc. v. Zeidenberg , 32 New Eng. L. Rev. 513, 537-50 (1998); Christopher L. Pitet, Comment, The Problem With “Money Now, Terms Later”: ProCD, Inc. v. Zeidenberg and the Enforceability of “Shrinkwrap” Software Licenses, 31 Loy. L.A. L. Rev. 325 (1997); Stephen P. Tarolli, Comment, The Future of Information Commerce Under Contemporary Contract and Copyright Principles, 46 Am. U

CALIFORNIA LAW REVIEW [Vol. 87:111 standard forms, who will not even need a signature (or its electronic equivalent) in order to enforce their terms.22 Because of this shift, contracts under Article 2B are really more akin to property rights: the contracts can be viewed as equitable servitudes that “run with” the goods in much the same way that some property owners once tried to impose restrictions on chattel.23 This shift is extremely important. The existing relationship between intellectual property and contract law is based on a conception of what constitutes an enforceable contract. Article 2B changes that conception; as a result, it cannot help but change the relationship as well. Finally, Article 2B makes virtually all of its default rules subject to change by “agreement of the parties,”24 including its provisions on choice of L. Rev. 1639 (1997); Lunney, supra note . For criticism of ProCD on copyright preemption grounds, see Elkin-Koren, Copyright Policy, supra note , at 106-13; Karjala, supra note , at 521; McManis, supra note , at 178-79, 182-84; Minassian, supra, at 569; O’Rourke, supra note ; Brian Covotta & Pamela Sergeeff, Comment, ProCD, Inc. v. Zeidenberg, 13 Berkeley Tech. L.J. 35 (1998); Thomas Finkelstein & Douglas C. Wyatt, Note, Shrinkwrap Licenses: Consequences of Breaking the Seal, 71 St. John’s L. Rev. 839, 868-69 (1997); Jeannett M. Hill, Note, The State of Copyright Protection for Electronic Databases Beyond ProCD v. Zeidenberg : Are Shrinkwrap Licenses a Viable Alternative for Database Protection?, 31 Ind. L. Rev. 143, 165-72 (1998); Mercer, supra, at 1287; Tarolli, supra, at 1639; Brett L. Tolman, Note, ProCD, Inc. v. Zeidenberg: The End Does Not Justify the Means in Federal Copyright Analysis, 1998 BYU L. Rev. 303; Note, Seventh Circuit Holds That Shrinkwrap Licenses Are Enforceable, 110 Harv. L. Rev. 1946 (1997). For arguments endorsing the result in ProCD, see Michael A. Jaccard, Securing Copyright in Transnational Cyberspace: The Case for Contracting with Potential Infringers, 35 Colum. J. Transnat’l L. 619 (1997); Darren C. Baker, Note, ProCD v. Zeidenberg : Commercial Reality, Flexibility in Contract Formation, and Notions of Manifested Assent in the Arena of Shrinkwrap Licenses, 92 Nw. U. L. Rev. 379 (1997); Brandon L. Grusd, Note, Contracting Beyond Copyright: ProCD, Inc. v. Zeidenberg, 10 Harv. J.L. & Tech. 353 (1997); Jerry David Monroe, Comment, ProCD, Inc. v. Zeidenberg: An Emerging Trend in Shrinkwrap Licensing? , 1 Marq. Intell. Prop. L. Rev. 143 (1997); Joseph C. Wang, Casenote, ProCD, Inc. v. Zeidenberg and Article 2B: Finally, The Validation of Shrink-Wrap Licenses, 16 J. Marshall J. Computer & Info. L. 439, 442 (1997). 22 .Actually, the draft clearly contemplates that only licensors, not licensees, will be able to take advantage of some of these new provisions enforcing standard forms. For example, section 2B-208, dealing with mass-market licenses, is drafted in such a way that it applies only to terms written by licensors that bind licensees. See U.C.C. § 2B-208 (Draft, Aug. 1, 1998). Thus, it speaks of parties having “an opportunity to review a mass-market license before becoming obligated to pay for the information,” id. § 2B-208(b), and entitlement to receive a refund from the licensor, see id. § 2B-208(b)(1). These terms clearly contemplate only licensor-drafted contracts, not licensee-drafted contracts. Transactions outside of the mass market, by contrast, are treated more neutrally. See id. § 2B-207 (setting forth requirements for adopting terms of records that are not dependent on the party’s status). 23 .Some commentators have made this point. See Thomas M.S. Hemnes, Restraints on Alienation, Equitable Servitudes, and the Feudal Nature of Computer Software Licensing, 71 Denv. U. L. Rev. 577 (1994) (discussing enforceability of restrictions on software use by reference to the doctrine of equitable servitudes); Margaret Jane Radin & Polk Wagner, The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace 73 Chi.-Kent L. Rev. (forthcoming 1998); Lunney, supra note ; cf. Stewart E. Sterk, Freedom from Freedom of Contract: The Enduring Value of Servitude Restrictions, 70 Iowa L. Rev. 615 (1985) (justifying restrictions on equitable servitudes on the grounds that such servitudes create significant negative externalities). Sterk’s point has even greater force for intellectual property than it does for real property. 24 .See U.C.C. art. 2B Preface (Draft, Aug. 1, 1998) (stating as a theme of Article 2B that “‘the fundamental tenet of the common law [is the] freedom of the parties to contract.’ . . . A default rule applies only if the parties do not agree to the contrary.”) (quoting U.C.C. art. 2A). A recent study by Russell Korobkin has found that people naturally treat default rules as “endowments” and demonstrate an “irrational” preference for retaining them. See Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83 Cornell L. Rev. 608 (1998). If this is right, it may matter what default rules are selected even in the context of a statute like Article 2B, which seems designed primarily to allow people to avoid them. On the design of default rules, see Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87 (1989)