Regulating Commerce Between the States Was One

Regulating commerce between the states was one of the overriding problems facing the drafters of the original U.S. Constitution. Under the Articles of Confederation, regulating such commerce was a significant problem so when the Constitution was being written the following language was incorporated to address the problem. In Article 1, Section 8 the Constitution states:

To regulate Commerce with foreign Nations, and among the several States,

and with the Indian Tribes.

Further, in Article 1, Section 9 the Constitution states:

No Tax or Duty shall be laid on Articles exported from any State. No Preference

shall be given by any Regulation of Commerce or Revenue to the Ports of one

State over those of another, nor shall Vessels bound to, or from one State

be obliged to enter, clear, or pay Duties in another.

The issue of the Federal Government's power to regulate interstate commerce was not largely contested until 1824 when the U.S. Supreme Court rendered its decision in the case of Gibbons v. Ogden, 22 U.S. 1 (1824). Since the decision in Gibbons, the issue of the federal government's right to regulate commerce has been unquestioned.

The UCITA is a proposed uniform law that is intended to govern software licensing, online access and other transactions in computer information. Meanwhile, the UCC is an uniform set of laws promulgated in an effort to harmonize the law of sales and other commercial transactions in all 50 states. The UCC has been in effect since 1952 and been widely accepted as a form of regulation. The UCITA, on the other hand, has been widely criticized and declared by a number of organizations as being dangerous and anti-competitive. In a great number of jurisdictions, the legislatures have refused to enact the UCITA.

The distinction between selling and licensing is essentially focused on the ownership of the product. When a product is sold the purchaser is granted ownership and is free to use and dispose of the product in whatever fashion he or she feels is appropriate. In a licensing situation, however, the ownership of the product is retained by the vendor and the purchaser is afforded the right to use the product but in a limited fashion. The product owner retains the right of ultimate control subject to the licensing conditions granted to the licensee.