Vol 7 No 1 - Roger Williams University School of Law

information rights and legislated copyrights were fundamentallydifferent.359 He explained that contract is a mechanism forprivate ordering that applies only between the parties to thecontract whereas the Copyright Act is public legislation thatapplies to the world at large.360Some critics have said that non-negotiated mass marketlicences are much more like legislation than contract and shouldbe closely scrutinised in terms of preemption.361 Lemley suggeststhat the weight of the ProCD decision should not be overstated asit goes against the majority of judicial opinion on the issue.362 InAustralia, the courts have yet to explicitly determine the legalvalidity of shrink-wrap and click-wrap contracts. Such contractswill inevitably be challenged, as in the United States, on the basisthat they do not adequately disclose the terms of the contract priorto the entering of the agreement.363 The issue of the formation ofcontractual licences will continue to be important to thecomplexion and definition of digital property because knowingwhether a contract exists, and upon what terms, is intimatelyconnected to informational exploitation and user rights.D. Contractual Allocation of Domain NamesContract has been even more prominent in the area of domainname allocation. Allocation of the premium Internet commercialtrading domain “.com” is now performed through a contractualregime created under the auspices of the Internet Corporation for359. Id. at 1454.360. Id.361. See Dennis S. Karjala, Federal Preemption of Shrinkwrap and On-LineLicenses, 22 U. Dayton L. Rev. 511 (1997); Mark A. Lemley, Beyond Pre-emption: TheLaw and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 111 (1999); MaureenA. O’Rourke, Copyright Preemption After the ProCD Case: A Market-Based Approach,12 Berkeley Tech. L.J. 53 (1997); David A. Rice, Public Goods, Private Contract, andPublic Policy: Federal Preemption of Software License Prohibitions Against ReverseEngineering, 53 U. Pitt. L. Rev. 543 (1992).362. See Mark A. Lemley, Software and Internet Law 490-93 (2000).363. See Mark Sneddon, Legal Liability and E-Transactions 33-34 (2000), availableat http://www.noie.gov.au/publications/NOIE/NEAC/publication_utz1508.pdf (lastvisited Nov. 16, 2001); see generally Thornton v. Shoe Lane Parking Ltd., 2 Q.B. 163(1970) (holding in a case regarding contract printed on parking lot ticket that sinceplaintiff did not know of the exemption condition and the defendants had not donewhat was reasonably sufficient to bring it to his notice, it did not except them fromliability); Balmain New Ferry Co. v. Robertson (1906) 4 C.L.R. 379 (Austl.) (holdingthat notice posted above wharf entrance was sufficient to show implied agreement toterms).