Vol 7 No 1 - Roger Williams University School of Law

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important to know whether a contract is in existence and uponwhat terms. This question has been raised in the context ofshrink-wrap and click-wrap/click-through contracts. “Shrinkwrapcontracts” are normally used where the product, e.g.,software, is sold in a store. The terms of the contract are shrinkwrappedaround the product in fine print and in most instancesnot fully disclosed until after opening the package. “Click-wrap orclick-through contracts” are normally employed in an onlineenvironment, such as the Internet, and may, at best, involve theacceptance of the terms of the contract by clicking on a digital icondenoting consent after having been shown the terms. In someclick wrap cases, which are highly questionable from a legalperspective, terms are not clearly displayed prior to the buyerentering into the agreement. In the recent decision of Specht v.Netscape Communications Corp and AOL,345 a third type ofsituation called “browse-wrap” was outlined. A browse-wrapscenario arises where the Internet consumer is not required tonegotiate an “I agree” button or icon or view the licence termsbefore gaining access to the product. Instead, the terms arelocated behind a button/icon on the website that the consumer isnot forced to view or engage. In Specht, the court held that thebrowse-wrap scenario would not usually give rise to a validcontract.346In ProCD, Inc. v. Zeidenberg,347 the court held that shrinkwrap,and arguably click-wrap, licences are enforceable in certaincircumstances.348 ProCD developed a product known as SelectPhone (the compilation of over 3,000 telephone directories on CD),which was sold in stores for $150.349 ProCD invested over $10million in developing this product.350 Mindful of the Feist decisionand the inability of copyright law to protect raw data, ProCDsought to commodify informational value through a contractual345. 150 F. Supp. 2d 585 (S.D.N.Y. 2001).346. See id. at 594.347. 86 F.3d 1447 (7th Cir. 1996).348. Id. at 1449; see, e.g., Register.com v. Verio Inc., 126 F. Supp. 2d 238 (S.D.N.Y.2001); Hotmail Corp. v. Van Money Pie Inc., 47 U.S.P.Q. 2d. 1020 (N.D. Cal. 1998);Lemley et al., Software and Internet Law 494-95 (2000); see also Hill v. Gateway 2000,Inc., 105 F.3d 1147 (7th Cir. 1997), cert. denied, 118 S. Ct. 47 (1997); Nat’l BasketballAss’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).349. ProCD, 86 F.3d at 1449.350. Id.
agreement.351 Shrink-wrapped around the CD in plastic orcellophane was a detailed user agreement or licence, whichcontained a term stipulating that the application program orinformation should not be on sold for commercial purposes.352Zeidenberg allegedly purchased the CD, went home and loaded itonto a website where it was sold at a price less than that chargedby ProCD.353 He was sued for breach of contract and argued thatnothing in the contract prevented him from selling theinformation.354 He argued that, at the point of purchase, it wasimpossible to read all the terms of the shrink-wrapped licence;therefore, he had no adequate notice of those terms and was notbound by them.355 The court held that the economics of the newinformation economy suggested that he should be bound by theshrink-wrapped terms and furthermore, if he did not like them, hecould have taken the CD back, but by acquiescing and choosing tokeep and use the informational product he was bound by theterms.356 While many have questioned whether this reasoning isfair, it is now embodied in sections 208 and 209 of UCITA, underthe umbrella of layered contracting.357Judge Easterbrook rejected the argument that the contractuallicence was preempted by section 301(a) of the U.S. Copyright Act.The argument was that creating copyright-like rights in data, thecontractual user agreement was in contravention of section 301 ofthe Copyright Act, which preempts states from legislating on theissue of copyright.358 Judge Easterbrook held that contractual351. Id.352. Id.353. Id. at 1450.354. Id. at 1450-52.355. ProCD, 86 F.3d at 1450-51.356. See id.357. UCITA is a model law promulgated for adoption by the United States thatcreates a “sale of goods” styled regime for the licensing of software and otherinformational transactions. It is argued that the process of transacting software andother informational products is not adequately covered by existing sale of goods typelegislation, which finds it hard to classify software. In the case law software issometimes classified as a good and sometimes as a service; leading commentators tolabel software the digital chameleon. UCITA aims to avoid this debate by creating asui generis regime governing the formation, performance and termination ofinformation transactions. It has been highly controversial in its content and has onlybeen adopted by two U.S. states: Maryland and Virginia. Uniform ComputerInformation Transactions Act, available athttp://www.law.upenn.edu/bll/ulc/ucita/ucita01.htm.358. See ProCD, 86 F.3d at 1453.
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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Page 100 and 101: scope of the Commerce Clause in the
Page 102 and 103: gave incentive for people to expres
Page 104 and 105: ejected this purported distinction
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Page 110 and 111: that a monopolist should not seek t
Page 112 and 113: motivating force.While antitrust or
Page 114 and 115: unjustifiable anti-competitive cond
Page 116 and 117: his refusal to sell or license his
Page 118 and 119: defense and exploitation of the cop
Page 120 and 121: the information age there have been
Page 122 and 123: In response to Intel’s argument t
Page 124 and 125: Court of First Instance in concludi
Page 126 and 127: to oust competitors, there was noth
Page 128 and 129: as a digital property owner, which
Page 130 and 131: anti-competitive use of monopoly po
Page 132 and 133: certain circumstances, exempted fro
Page 134 and 135: for circumventing a technological p
Page 136 and 137: DMCA creates an exclusive right in
Page 138 and 139: circumventing a TPM in order to loo
Page 140 and 141: “staple article of commerce” do
Page 142 and 143: commerce.”320 Is innovation stifl
Page 144 and 145: anner advertisement company DoubleC
Page 146 and 147: the subject. Demographic informatio
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Page 152 and 153: this value is difficult to apportio
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Page 156 and 157: the new environment.For example, th
Page 158 and 159: implemented. As this section will h
Page 160 and 161: ight. First sale is an important di
Page 162 and 163: sign a hard copy contract containin
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Page 172 and 173: decrease innovation.30 On the other
Page 174 and 175: could be called a trespass, since a
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Page 178 and 179: Universal Music Group uses software
Page 180 and 181: Taking UCITA on the Road: WhatLesso
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Page 184 and 185: It is against this background that
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Page 188 and 189: as well, such as the American Bar A
Page 190 and 191: American Law Institute refused to p
Page 192 and 193: enactment of the draft. This led to
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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