For years, this committee has been hacking out a set of rules designed to make cyberspace safe for the sale of "information products" - especially computer software. So far, the result is not promising. The current draft represents little more than the narrow commercial interests of the major software companies. It's an embarrassment to its sponsors, who ought to dump the draft and leave the topic alone.

The Uniform Commercial Code is the bedrock of modern American business law. Born in 1942 as a joint project of the American Law Institute and the National Conference of Commissioners on Uniform State Laws, the complete code consists of 11 articles. Article 2 (enacted in 49 states) governs the sale of goods. The proposed Article 2B would govern "computer information transactions," which means licenses that relate to "information and rights to use information."

Humility should be our first principle when legislating about cyberspace: We should be honest about how much we don't yet know. Although 2B would facilitate tight control of information on the Net, we don't know whether tight control makes sense. The Supreme Court has hinted, wisely, that treating information as property would be unconstitutional. The best thing is to go slowly - to let parties write the contracts they want and let courts test them. A practice should develop before laws are passed.

But 2B has this process backwards. We are just beginning to see how electronic commerce will work and, therefore, just learning how contracts governing electronic commerce should work. But Article 2B establishes rules that fundamentally alter the traditional balance in contract law. These changes favor - surprise, surprise - the companies whose lobbyists have been sitting at the 2B table.

One example illustrates the situation. It has long been a principle of commercial law that contract provisions - especially those in a standard contract - that are surprising to a reasonable person are not binding unless they are brought to the signer's attention. You don't need to worry about paragraph 106 of your car rental agreement, which promises your annual salary to Hertz, because no reasonable person would expect such a provision.

The principle makes perfect sense. The law spares consumers the burden of reading 100 pages of turgid prose, instead letting people rely on what's reasonable and focus only on what's different.

Article 2B reverses this presumption. If it passes, the consumer is bound by the terms of the contract (subject to a rare finding of unconscionability) so long as the consumer had an opportunity to discover the surprising provision. This means before you "sign" a software contract by clicking on "I agree" in the installation routine, you'll have to page through unintelligible legalese to make sure there's not a rat hiding somewhere.

The American Law Institute, to its credit, was concerned about this provision. So the 2B committee now proposes a new test: After the user clicks "I agree" once, a second dialog box should ask, "Are you sure?"

"Are you sure?" Are you kidding? This doesn't begin to address ALI's complaint. Instead, it betrays the extent to which the 2B committee just doesn't get it.

Contract law is not about making it easy for contractors to slip one by. With this response to a legitimate concern, the committee reveals that it doesn't understand the balance that a law such as the UCC has to strike - a balance between many interests, many of whom can't afford to sit for four years at a bargaining table.

Enough of this. The ALI and NCCUSL should just dump this draft. I have no doubt about the good faith of the committee. But industry-controlled lawmaking is not lawmaking. Without the ordinary checks of the legislative process (however weak those are), industry lawmaking can't help but result in deals that favor those who can afford to sit at the table.

We should just give up on codes for now. There is no urgent need for a new UCC. Let the software industry write the contracts they want, and let courts interpret those contracts according to established principles of commercial and contract law. After we have a practice to codify, then let the codifiers write the code. Until then, we should rely on courts.

I don't mean one court with a final answer. I mean many courts, making decisions over time in a common-law process. That will produce not a deal or a compromise, but a set of rules that will have to justify themselves not with power, not with votes, but with reason. It is this that the UCC 2B can't do.

Lawrence Lessig is the Berkman Professor of Law at Harvard Law School. E-mail him at lessig@law.harvard.edu.