Vol 7 No 1 - Roger Williams University School of Law

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the debate has centered on whether to enact UCITA as a whole,enact it with minor amendments, or (at the other extreme) kill thelegislation.The time has come to reevaluate UCITA. It does not makesense to ask what amendments to isolated provisions might makeit “sell” to different constituencies. UCITA contains a number ofcontroversial provisions on which consensus can never beachieved, and the opposition will remain.5 Although it isundoubtedly possible to enact a law about which there is somecontroversy, the fact that UCITA contains so many controversialprovisions compounds the difficulties of enactment. Rather thanfocusing on the controversial provisions and how they can beamended to satisfy the opponents, the focus might better be placedon what positive can be gleaned and saved from UCITA.UCITA stands as a potential roadmap outlining the issues ofimportance for future development, debate and resolution; guidingdevelopments in other venues (such as international law-makingvenues); or identifying those points on which there is sufficientagreement that legislative enactment of those provisions could beachieved. UCITA was (and is) an extremely ambitious project thatinvites and merits intense scrutiny and study. Such a detailedanalysis, however, is beyond the scope of this much more limitedendeavor—to permit someone who was at many stages deeplyinvolved in the process the luxury of ruminating over what hastranspired. I am one who believes that the lessons to be learnedfrom UCITA (and the process by which it was drafted) are worthfar more than its provisions themselves. These lessons may proveextremely valuable to those who toil in the field of legislativereform, both domestically and internationally.idea submission provisions) and section 816 (clarifying limitations on self-help). SeeAmendments to the Uniform Computer Information Transactions Act (ratified Aug. 4,2000), available at http://www.law.upenn.edu/bll/ulc/ucita/ucitaAMD.htm (last visitedOct. 8, 2001); Amendments to Sections 605 and 816 of the Uniform ComputerInformation Transactions Act (as Last Revised in 2000), available athttp://www.ucitaonline.com/docs/0101a.htm (last visited Oct. 8, 2001); AmendmentsApproved by NCCUSL Executive Committee Pending Ratification of the Conference(Feb. 2000), available at http://www.law.upenn.edu/bll/ulc/ucita/approveamend.htm(last visited Oct. 8, 2001).5. An example of this may be § 209, the choice of law provisions. There has beenan inability to reach consensus on them in other fora such as the Hague Conference onPrivate International Law. See Paul Hofheinz, Birth Pangs For Web Treaty SeemEndless, Wall St. J., Aug. 16, 2001, at A11. In UCITA, the real problem comes from thebundling together of many controversial issues such as this into one package.
I. A BIT OF BACKGROUNDOver the last ten years, our economic marketplace hasdramatically changed in many significant ways.6 With the adventof the Internet and the rise of computer technologies generally, wehave witnessed the commoditization of information: informationitself has become the subject of commercial transactions, not justthe medium of performing them. This is, in essence, a key featureof our emerging information economy. Business can now beconducted at lightning speed between parties at great distancesfrom one another; national boundaries and cultural differences areboth invisible. There have been increasing demands on the law,developed in the context of different transactions, to catch up andadapt to these new transactions; cries for clarity, certainty, andinternational uniformity abound.7 Uniformity eliminates the“jurisdictional risk” of non-uniform law in cross-border activities,which is particularly a problem in Internet transactions. Acontractual code, it is argued, will facilitate information exchange;codification lowers negotiation costs by supplying off-the-shelfterms parties can adopt, filling gaps if they cannot agree andproviding the backdrop against which negotiations occur.86. See, e.g., Neil B. Cohen, Introduction to Symposium, Software as aCommodity: International Licensing of Intellectual Property, 26 Brook. J. Int’l L. 3(2000). For an interesting analysis of how technology has transformed society over alonger period, see M. Ethan Katsh, The Electronic Media and the Transformation ofLaw (1989).7. See, e.g., William J. Clinton & Albert Gore, Jr., A Framework for GlobalElectronic Commerce (1997), available at http://www.iitf.nist.gov/eleccomm/ecomm.htm(last visited Nov. 11, 2001) [hereinafter Clinton & Gore, Framework].Many businesses and consumers are still wary of conducting extensivebusiness over the Internet because of the lack of a predictable legalenvironment governing transactions. This is particularly true forinternational commercial activity where concerns about enforcement ofcontracts, liability, intellectual property protection, privacy, security andother matters have caused businesses and consumers to be cautious.Id. The White House report noted the work being done by the United Nations and theNational Conference of Commissioners on Uniform State Laws in developing rulesgoverning electronic documents and signatures, and observed:The United States Government supports the adoption of principles alongthese lines by all nations as a start to defining an international set of uniformcommercial principles for electronic commerce. We urge UNCITRAL, otherappropriate international bodies, bar associations, and other private sectorgroups to continue their work in this area.Id. (emphasis added).8. See, e.g., Mary Jo Howard Dively & Carlyle C. Ring, Jr., Overview of Uniform
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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
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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Page 134 and 135: for circumventing a technological p
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Page 142 and 143: commerce.”320 Is innovation stifl
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Page 150 and 151: information rights and legislated c
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
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Page 178 and 179: Universal Music Group uses software
Page 180 and 181: Taking UCITA on the Road: WhatLesso
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
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Page 206 and 207: to by industry groups, with the res
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 228 and 229: acts of copyright infringement.7 Un
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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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