Pliers and Screwdrivers as Contributory Infringement Devices: Why Your Local Digital Repair Shop Might Be a Copyright Infringer, and Why We Must Stop the Craziness

In September of 2012, Apple announced that it had received two million pre-orders for the iPhone 5 within the first twenty-four hours it was available. And while this number is staggering, the previous year the iPhone 4S sold over one million devices during its first twenty-four hours of pre-order sales. While the iPhone is a single example, it represents a much larger truth—the use of embedded software and digital devices permeates our daily lives. Naturally, as technology becomes more ingrained, consumers will expect the ability to repair technology at a local repair shop. In addition, as the cost for technology drops and release dates accelerate, more individuals will frequently swap out older generation technology for the new model. While many individuals will trade in their older technology, a majority will hold on to it and later throw it away without a thought about the possible uses of the old device. And few will consider, even for a fleeting moment, the issues that will arise in relation to the new and old device because of the copyright laws. These issues include our ability to seek repair from local shops, to trade in devices, to recycle goods with embedded technology, and of course, to maintain the technology. All of these issues demand the right people to have the right information, often contained in a manual. Fortunately, the issue of manuals being free from copyright protection has been dealt with previously in the automobile industry. Unfortunately, the issue was overcome in the name of environmental law, thus avoiding the much larger debate in terms of the copyright protection afforded manuals that contain basic and important information. The time has come to renew the debate and consider the long-term consequences associated with protections afforded this critical information. This Article aims to briefly consider the growth of embedded technology, the importance of manuals and other information, the growth of the throw-away culture, the environmental impacts of restrictions on the sharing of information, and the current legislative initiatives to address the overly strong protections afforded this important information. In light of this, this Article calls for more attention and discussion as it relates to the current copyright protections, and for a more balanced approach to these protections. This Article concludes by demonstrating the law must institute three changes to create a better balance: (1) limit the copyright protections afforded manufacturers in relation to manuals and similar publications to life of the device or new generation release, whichever is earliest, (2) remove restrictions related to unlocking and similar technology work-arounds, and (3) insist upon protections for the information contained within the trade-in device

Rethinking UCITA: Lessons from the Open Source Movement

For those within the information technology (IT) industry, the phrase “open source” has been as prominent at water cooler and boardroom discussions over the last several years as the phrase “out source.” Open source is at once a software development model, a business model, a social movement, and a philosophy that has recently garnered attention from outside of the IT sphere. As such, the topic has become increasingly fertile ground for academic scholarship from several disciplines. Economists, legal academics and practitioners, computer engineers, and social commentators have offered their varying perspectives on open source software. Whether or not this attention is warranted, and whether or not this is truly “an idea whose time has finally come,” remains unclear. The National Conference of Commissioners on Uniform State Laws (NCCUSL) recently proposed the Uniform Computer Information Transactions Act (UCITA) for adoption by all the states. At present, only two states have adopted UCITA and the prevailing logic suggests that further adoption will be an uphill struggle. In large part, UCITA was controversial because it was perceived as overly protective of large commercial computer software developers–most notably, Microsoft. A diverse and energetic collection of interests, aligned against UCITA, has succeeded thus far in derailing its progress. Although the argument that Microsoft is hampered by a lack of uniformity and certainty in the law is not likely to engender a great deal of sympathy, that same argument in the context of open source software might be more convincing. In this Comment, I argue that the open source movement necessitates a rethinking of UCITA, or at least a UCITA-like uniform code to govern software licensing transactions. If UCITA benefits the open source movement, then former opponents may be willing to take another look at the statute. For a number of reasons, a rethinking of UCITA, in light of the open source movement as well as some important amendments to UCITA itself, leads to the conclusion that UCITA should now be adopted by the states

Performance Risk, Form Contracts and UCITA

No scholarly commentator has suggested that the form contract rules provide a satisfactory answer to the commercial problem of performance risk. So, one might think that the dawn of the information economy would be a propitious time to implement a new doctrinal approach. Apparently not: the National Conference of Commissioners on Uniform State Laws (the Conference ) has promulgated a comprehensive commercial statute that fails to remedy or even modify the law of form contracts in purely commercial transactions. The Uniform Computer Information Transactions Act ( UCITA )--drafted to provide the background law for many of the most significant transactions in the information age--simply accepts as holy writ the duty to read tradition that has been handed down by our forefathers. Specifically, § 113 of UCITA provides that the Act\u27s default rules can be varied by agreement and §§ 112 and 208 provide that manifested assent to a standard form (by, for example, use of the product) constitutes assent to each term of that form. The Conference proclaims that the Act is a statute for our time; setting forth uniform legal principles applicable to computer information transactions. This article considers whether the several States should adopt the Act as drafted, when it continues a fiction that condones economic inefficiency and unfair resolution of disputes. Concluding that UCITA cannot profess to be a coherent contract law framework for analyzing a license ... the dominant contractual framework for commerce in computer information without a more uniform treatment of performance problems in form transactions, I propose an alternative treatment based on efficient risk management principles.[...] This Article is limited to UCITA\u27s treatment of performance problems in the context of form contracts used in transactions between commercial (i.e. non-consumer) parties. Part II will describe the scholarship regarding form contracts in particular-scholarship that apparently has been rejected or ignored by the Conference. Part II also analyzes whether shrinkwraps and clickwraps, as prototypical UCITA contracts, present any particular basis for rejecting scholarly analysis. Part III examines in detail the most relevant provisions of UCITA and the Official Comments supporting those provisions. True to its word, UCITA\u27s formalistic freedom of contract approach would enforce standardized contractual terms regarding performance obligations and remedies, despite any empirical basis for finding a meeting of the minds or any persuasive demonstration that presumed assent is consistent with public norms. Part IV explains an approach that focuses on risk bearing and spreading and demonstrates why that approach is more efficient and fair. I present a model statute that would implement such an approach. The statute breaks down the problem into five parts: definitions, specification of product performance standards, tests for determining whether those standards were met, remedies for performance failure, and a deferred effective date. I then apply UCITA and the model statute to the foregoing hypothetical cases to analyze the difference in outcomes and incentives. I conclude Part IV with a consideration of how the model statute would have applied if Y2K had lived up to its billings, and how it might affect innovation in information technology

Performance Risk, Form Contracts and UCITA

No scholarly commentator has suggested that the form contract rules provide a satisfactory answer to the commercial problem of performance risk. So, one might think that the dawn of the information economy would be a propitious time to implement a new doctrinal approach. Apparently not: the National Conference of Commissioners on Uniform State Laws (the Conference ) has promulgated a comprehensive commercial statute that fails to remedy or even modify the law of form contracts in purely commercial transactions. The Uniform Computer Information Transactions Act ( UCITA )--drafted to provide the background law for many of the most significant transactions in the information age--simply accepts as holy writ the duty to read tradition that has been handed down by our forefathers. Specifically, § 113 of UCITA provides that the Act\u27s default rules can be varied by agreement and §§ 112 and 208 provide that manifested assent to a standard form (by, for example, use of the product) constitutes assent to each term of that form. The Conference proclaims that the Act is a statute for our time; setting forth uniform legal principles applicable to computer information transactions. This article considers whether the several States should adopt the Act as drafted, when it continues a fiction that condones economic inefficiency and unfair resolution of disputes. Concluding that UCITA cannot profess to be a coherent contract law framework for analyzing a license ... the dominant contractual framework for commerce in computer information without a more uniform treatment of performance problems in form transactions, I propose an alternative treatment based on efficient risk management principles.[...] This Article is limited to UCITA\u27s treatment of performance problems in the context of form contracts used in transactions between commercial (i.e. non-consumer) parties. Part II will describe the scholarship regarding form contracts in particular-scholarship that apparently has been rejected or ignored by the Conference. Part II also analyzes whether shrinkwraps and clickwraps, as prototypical UCITA contracts, present any particular basis for rejecting scholarly analysis. Part III examines in detail the most relevant provisions of UCITA and the Official Comments supporting those provisions. True to its word, UCITA\u27s formalistic freedom of contract approach would enforce standardized contractual terms regarding performance obligations and remedies, despite any empirical basis for finding a meeting of the minds or any persuasive demonstration that presumed assent is consistent with public norms. Part IV explains an approach that focuses on risk bearing and spreading and demonstrates why that approach is more efficient and fair. I present a model statute that would implement such an approach. The statute breaks down the problem into five parts: definitions, specification of product performance standards, tests for determining whether those standards were met, remedies for performance failure, and a deferred effective date. I then apply UCITA and the model statute to the foregoing hypothetical cases to analyze the difference in outcomes and incentives. I conclude Part IV with a consideration of how the model statute would have applied if Y2K had lived up to its billings, and how it might affect innovation in information technology

Contracting in the Age of the Internet of Things: Article 2 of the UCC and Beyond

This Article analyzes the global phenomenon of the Internet of Things (“IOT”) and its potential impact on consumer contracts for the sale of goods. Recent examples of IOT products include Amazon’s Dash Replenishment Service, which allows household devices to automatically reorder goods. By 2025, the IOT is estimated to have an economic impact of as much as $11.1 trillion. To date, there are approximately fifteen billion interconnected devices, and by 2020, there will be fifty billion such devices worldwide. IOT devices will revolutionize the way that consumers shop for consumable supplies and other goods. Consumers will no longer need to log on to a company’s website or use a mobile application to purchase goods but will be able to conclude contracts for the sale of goods by using IOT devices. This Article contends that the legion of IOT data expected to be generated about consumers and their preferences will worsen preexisting information asymmetry in consumer contracts to the benefit of companies; increase the lack of proximity between consumers and the contract formation process; further encourage consumers’ failure to read and understand contract terms prior to contracting; and likely lead businesses to further take advantage of consumer ignorance and apathy by including one-sided contract terms, such as unilateral amendment provisions and terms that restrict consumer access to judicial process. Common law agency principles, e-commerce statutes, contract law, and Article 2 of the Uniform Commercial Code (“Article 2”) are unlikely to effectively address these concerns. This Article suggests important amendments to Article 2 and argues that courts should adjust their application of existing contract law and agency principles to account for the new automatic and interface-free contracting environment that the age of the IOT will herald