From Lord Coke to Internet Privacy: The Past, Present, and Future of Electronic Contracting

Contract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract law also must be able to handle changing social and economic circumstances, changes that occur at an ever-increasing speed. Contract law, originally designed to handle agreements reached by persons familiar with one another, evolved over time to solve the problems posed by contract formation that was done at a distance — that is, contract law had developed to handle first paper, then telegraphic, and finally telephonic communications. It has handled those changes very well. In the 1990s, however, things began to change. The rise in computer use by individuals coupled with the advent of the World Wide Web gave rise to two parallel developments, both of which challenged the law of contract formation. Increased computer use created a demand for software programs designed for the consumer market, and those programs were commonly transferred to users by way of standard-form licenses that were packaged with the software and thus unavailable before the consumer paid for the software. Also, parties in large numbers began to use electronic means — the computer — to enter into bargained-for relationships. The turn of the millennium brought two electronic contracting statutes, the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”), which removed any doubts that contracts entered into electronically could satisfy the Statute of Frauds. Encouraged by the certainty given by those statutes, internet businesses started offering contract terms on their websites, asking customers to consent to terms by clicking an icon, or by not seeking express assent at all by presenting terms of use by hyperlink. The ease of presenting terms comprised of thousands of words by an internet hyperlink makes it easy for a vendor in its terms of use and terms of service to ask us to give up privacy rights and intellectual property rights. Modern communications technologies therefore make it easier for parties to engage in risky transactions. Nevertheless, we believe that, with few exceptions, the common law of contracts is sufficiently malleable to address the problems arising out of that behavior and where it is not, regulation of contract terms is appropriate. This Article examines those developments

UCITA: an act of promise or peril? A critique of the Uniform Computer Information Transactions Act

The paper is a critique of the Uniform Computer Transactions Act, or UCITA. Specifically, the history of the development of UCITA, various provisions of UCITA and its ramifications upon passage are examined. Although UCITA has the potential to impact most businesses and consumers in both public and private arenas, the focus of this paper will be on UCITA's effect on the interaction between businesses and consumers from the library perspective in the dawn of the Information Age

Reconstructing the Software License

This article analyzes the legitimacy of the software license as a institution of governance for computer programs. The question of the open source license is used as a starting point. Having conducted a broader inquiry into the several possible bases for the legitimacy of software licensing in general, the article argues that none of the grounds on which software licensing in general rests are sound. With respect to open source software in particular, the article concludes that achieving a legitimate institutional form for the goals that open source proponents have set for themselves may require looking beyond licensing as such

The Law of Unintended Consequences: The Digital Millennium Copyright Act and Interoperability

The Digital Millennium Copyright Act (DMCA) has been criticized for many reasons, including its impact on the fair use defense to copyright infringement, and its potential to chill the free exchange of scientific, technical, and educational information. Law professors and special interest groups have opposed elements of the DMCA from its inception and continue to lobby for reform. One of the more recent concerns about the DMCA involves the incorporation of copyrightable software code into tangible goods for purposes related to the functionality of those goods. Some manufacturers of such products recently have attempted to use the DMCA to prevent commercial competitors from developing and marketing interoperable replacement parts in competition with them in relevant after-markets. Despite recent judicial determinations against such manufacturers, the potential for future manufacturers to argue for the application of the DMCA in these kinds of cases remains a matter of some concern as an unintended consequence of the legislation. This Article advocates the development and implementation of a legislative carve out to the DMCA in cases involving interoperable replacement parts for tangible goods where copyrightable software code is incorporated incidentally into either the original good or the authorized replacement part or both. DMCA liability should not arise in situations where copyright infringement is not a central commercial concern of the plaintiff

Regulating Data as Property: A New Construct for Moving Forward

The global community urgently needs precise, clear rules that define ownership of data and express the attendant rights to license, transfer, use, modify, and destroy digital information assets. In response, this article proposes a new approach for regulating data as an entirely new class of property. Recently, European and Asian public officials and industries have called for data ownership principles to be developed, above and beyond current privacy and data protection laws. In addition, official policy guidances and legal proposals have been published that offer to accelerate realization of a property rights structure for digital information. But how can ownership of digital information be achieved? How can those rights be transferred and enforced? Those calls for data ownership emphasize the impact of ownership on the automotive industry and the vast quantities of operational data which smart automobiles and self-driving vehicles will produce. We looked at how, if at all, the issue was being considered in consumer-facing statements addressing the data being collected by their vehicles. To formulate our proposal, we also considered continued advances in scientific research, quantum mechanics, and quantum computing which confirm that information in any digital or electronic medium is, and always has been, physical, tangible matter. Yet, to date, data regulation has sought to adapt legal constructs for “intangible” intellectual property or to express a series of permissions and constraints tied to specific classifications of data (such as personally identifiable information). We examined legal reforms that were recently approved by the United Nations Commission on International Trade Law to enable transactions involving electronic transferable records, as well as prior reforms adopted in the United States Uniform Commercial Code and Federal law to enable similar transactions involving digital records that were, historically, physical assets (such as promissory notes or chattel paper). Finally, we surveyed prior academic scholarship in the U.S. and Europe to determine if the physical attributes of digital data had been previously considered in the vigorous debates on how to regulate personal information or the extent, if at all, that the solutions developed for transferable records had been considered for larger classes of digital assets. Based on the preceding, we propose that regulation of digital information assets, and clear concepts of ownership, can be built on existing legal constructs that have enabled electronic commercial practices. We propose a property rules construct that clearly defines a right to own digital information arises upon creation (whether by keystroke or machine), and suggest when and how that right attaches to specific data though the exercise of technological controls. This construct will enable faster, better adaptations of new rules for the ever-evolving portfolio of data assets being created around the world. This approach will also create more predictable, scalable, and extensible mechanisms for regulating data and is consistent with, and may improve the exercise and enforcement of, rights regarding personal information. We conclude by highlighting existing technologies and their potential to support this construct and begin an inventory of the steps necessary to further proceed with this process