Vol 7 No 1 - Roger Williams University School of Law

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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).
Assigned Names and Numbers (ICANN)364 requiringarbitration.365The recent string of personality cases concerningJuliaRoberts.com, Sting.com and Madonna.com are interestingexamples.366 Enterprising business people moved in early andregistered those domains. The famous stars behind the nameswanted them and sought to invoke the ICANN dispute resolutionpolicy, which involves compulsory arbitration. At the time ofregistration, the domain name registrants contractually bindthemselves, in the instance of a dispute, to enter arbitration andabide by the decision. If the registrant is found to have registeredand used the domain name in bad faith, vis-a-vis a trademark,they stand to lose that registration. Julia Roberts and Madonnawere successful in showing the necessary elements, including thatthey possessed a trademark, while Sting, due to the genericnature of the word and other difficulties, did not possess therequisite trademark.This system is in line for an overhaul as the legitimacy,consistency and accountability of the process is in question.367Nevertheless, let me make some observations. The ICANNsystem of resolving domain name disputes, which has dealt within excess of 3,000 cases since the beginning of the year 2000, hassought to protect informational value through contractuallyagreed principles. To date, the majority of the decisions havefavoured the traditional trademark holder and not the domainname speculator. Domain name speculation has been treated likea case of the theft of the investment value of the trademark.368The speculator has rarely been regarded as deserving of reward.Perhaps there should be arguments for value on both sides, but364. ICANN is available at http://www.icann.org.365. ICANN: Uniform Domain Names Dispute Resolution Policy (UDRP), art. 4, athttp://www.icann.org/udrp/udrp-policy-24oct99.htm (last visited Nov. 10, 2001).366. These decisions are available athttp://arbiter.wipo.int/domains/decisions/index.html.367. See generally A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANNto Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000) (arguing thatthe use of ICANN to regulate in the stead of an executive agency violates fundamentalvalues and policies designed to ensure democratic control over the use of governmentpower, and sets a precedent that risks being expanded into other regulatory activities).368. See Brian F. Fitzgerald & Emma Sheehan, Trademark Dilution and theCommodification of Information: Understanding the ‘Cultural Command’, 3 MacarthurL. Rev. 61 (1999) (Austl.).
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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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negative pregnant that suggests tha
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
Page 106 and 107: talk, communicate or consume inform
Page 108 and 109: frameworks that will allow diversit
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
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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
Page 154 and 155: Association (WIPO) will administer
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
Page 186 and 187: similarities as well as differences
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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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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