Interesting People mailing list archives
IP: Re: Time to bury proposed software law (: [risks] Risks Digest 21.41
From: David Farber <dave () farber net>
Date: Thu, 24 May 2001 10:50:30 -0400
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 theIn 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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- IP: Re: Time to bury proposed software law (: [risks] Risks Digest 21.41 David Farber (May 24)
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