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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