Professor Raymond T. Nimmer of the University of Houston Law Center, a leader in intellectual
property law in the United States, sadly passed away in January of
2018. Before passing, he authored, “Revised
Article 9 and Intellectual Property Asset Financing.” The abstract states:
Commercial asset value today often resides primarily in
information assets, rather than in the physical assets that dominated the
industrial age (goods and real estate). While tangible assets continue to have
value, of course, the shift toward intangibles as value is significant and has
been occurring for some time. We have not yet seen its end. More important, we
have not yet come to grips with its meaning, either for commercial contract law
or for commercial asset-based financing. Attitudes and approaches from the
commercial world before intangible assets took center stage continue to
influence how modern law treats information assets. Intangible assets take a
variety of forms. Some involve contract rights to receive payment from third
parties. This type of intangible property has provided a basis for commercial
financing arrangements for several generations. But, in the modern economy,
sources of intangible asset value go beyond contracts. Information has value.
Rights to use or to prevent others' use of information have value. These values
do not depend on a contract right to payment. Rather, the value depends on both
the situational value of the information itself (e.g., how important is it in
light of other sources of similar or the same information) and on a statutory
or contractual right to use or to exclude others' use of the information. It is
in dealing with this type of asset that modern commercial asset financing law
must be judged because it is here that the major share of economic growth in
this country will continue to focus. My purpose in this Article is to explore
the relationship between information assets and commercial asset-based financing
under proposed revisions of U.C.C. Article 9. This relationship entails a
structural and philosophical conflict that engenders uncertainty at various
levels. Revised Article 9 represents a massive and largely successful effort to
solve many previously uncertain issues in asset-based financing. In information
financing, however, many questions are left unanswered or the answers are
structured in a manner that exacerbates conflict. We have not reached an
effective accommodation between information property rights law and state law
of secured financing under Article 9.
A tribute to Professor Nimmer may
be found, here.
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