IP: Re: Time to bury proposed software law (: [risks] Risks Digest 21.41

[David Farber <dave@farber.net>]

>Date: Thu, 24 May 2001 10:33:49 -0400
>From: "R. Polk Wagner" <polk@law.upenn.edu>
>To: <farber@cis.upenn.edu>
>
>On 5/24/01 9:13 AM, "David Farber" <dave@farber.net> wrote:
>
> >
> >> Date: Sun, 13 May 2001 18:14:02 -0400
> >> From: Monty Solomon <monty@roscom.com>
> >> Subject: Time to bury proposed software law (Dan Gillmor)
> >>
> >> UCITA, the ``Uniform Computer Information Transactions Act,'' is the
>
>In the spirit of balance, I suggest that IP-ers consider the actual law
>itself before resorting to hyperbolic characterizations and quick
>conclusions.  The question is a _lot_ more complex then Gillmor lets on.
>
>While I'm hardly a defender of UCITA, I think its important to recognize
>that the issues it raises simply must be addressed.  We live in a world
>where electronic transactions are increasingly the norm, yet existing laws
>may not deal effectively with disputes that arise from these transactions.
>If we want electronic commerce to flourish, we're going to need to establish
>a legal framework.
>
>UCITA represents a first attempt at such a framework.  At root, the
>controversy over UCITA stems from its philosophical bent: freedom of
>contract.  As a general matter, UCITA allows parties to electronic contracts
>to structure their behaviour without much government interference.  This
>includes the blessing of a variety of new contract forms ("shrinkwrap",
>"clickwrap", "check-the-box"), as well as broad provisions that allow the
>parties to specify things like the forum for disputes, warranty terms (or
>the lack thereof), and so forth.
>
>In response to early criticism, UCITA now includes several specific
>protections for consumers, including a mandatory right to return any good if
>the details of the contract are deemed unacceptable upon full review.  UCITA
>also maintains the traditional American contract law approach of disallowing
>extremely one-sided or unfair contracts.
>
>UCITA doesn't, however, include many other mandatory terms, such as a
>prescribed warranty length, specific rules against enforcing contracts
>electronically (what Gillmor refers to as "turn[ing] off . . . computer
>systems from remote locations"), unalterable privacy protections, and so
>forth.  None of these protections are excluded, but none are required.
>Again, the animating force of UCITA is freedom of contract -- e.g., minimal
>government regulation.
>
>I teach UCITA to law students, and invariably many (if not most) in the
>class seem to conclude that the harsh criticisms of UCITA are unfair.  To be
>sure, there are a number of problems with UCITA, including its acceptance of
>software sales as a license, and its relationship with federal laws.  And
>those who hoped to use a law on digital contracts as a vehicle for extensive
>commercial regulation are going to be profoundly disappointed.  But a close
>look at the law reveals that the reality is something different from the
>rhetoric.
>
>
>Polk
>
>
>FWIW, the full text can be found here:
>
>http://www.law.upenn.edu/bll/ulc/ucita/ucita1200.htm
>
>
>--
>=====================================
>R. Polk Wagner
>University of Pennsylvania Law School
>3400 Chestnut Street
>Philadelphia, Pennsylvania  19104
>http://www.law.upenn.edu/polk/
>=====================================



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