Vol 7 No 1 - Roger Williams University School of Law

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enactment of the draft. This led to obviating rather thanlearning from strong concerns expressed by Conferenceand Institute discussions over the entire course of theproject, ranging from scope and drafting to the interplaywith intellectual property rules. Substantively . . . thethree of us often disagree. Yet we believe that somerules, although they may assure importantconstituencies’ support for the draft, nonethelessjeopardize enactability because of the ultimate balance ofinterests achieved.These are not new, or newly expressed, concerns. Theyare fundamental concerns and have been aired before inConference and Institute discussions, by individualmembers, Drafting Committee members and observers,and Internet discussion list participants, as well as bysoftware and other computer science enterprises andprofessional organizations, law professors, and editorialwriters. The persistent din of these concerns hascontributed significantly to our decision to decline theinvitation to participate as advisors.28II. THE INTERNATIONAL DEBATEA. Goods, Services, or Sui Generis: Herein the application of theCISGAlthough UCITA is a domestic statute written against thebackdrop of US law, the pressures that were behind its evolutionare present on the international level as well. With the growth ofinformation transactions, there has been increasing recognitionthat many of the primary sources of law governing internationalcommercial transactions do not effectively cover information. Justas the UCITA discussions had their origins in dialogue overwhether and to what extent Article 2 of the Uniform Commercial28. See Memorandum from David Bartlett et al., to Uniform ComputerTransactions Act Drafting Committee (May 7, 1999), available athttp://www.2bguide.com/docs/50799dad.html (last visited Sept. 8, 2001). It should beemphasized that the three of us were seldom aligned on individual substantive issuesthat came before the drafting committee; nonetheless, we were united in our decisionsto recommend that the ALI withdraw from the project and to decline to continue ourown participation.
Code might be adapted to cover information,29 the same questionis being asked globally (in case law, in academic literature and inthe legislative process) about the UNCITRAL Convention on theInternational Sale of Goods (CISG).30 Should the internationalequivalent of UCC Article 2, the United Nations Convention onthe International Sale of Goods, be modified to accommodate nongoodstransactions?31The scope of the CISG is limited, both in terms of the subjectmatter of the transaction (goods) and the structure of thetransaction (sales).32 Although the Convention is limited to goods,the term is not defined.33 Thus, there is the question of whetherthe term “goods” should be construed to apply to “virtual goods.”The argument has been made by legal commentators that the saleof software may fall under the Convention’s substantive sphere ofapplication, even though it is not tangible, with the qualificationbeing that the software be “off the rack” software i.e., not custommadesoftware or software that has been extensively modified tomeet the user’s needs.34 Recent judicial decisions have supported29. See Boss & Woodward, supra note 10; Boss et. al., supra note 10; Ritter, supranote 10.30. United Nations Convention on Contracts for the International Sale of Goods,art. 19(3), U.N. Doc. A/CF.97/18 (1980), available athttp://www.uncitral.org/english/texts/sales/CISG.htm (last visited Sept. 15, 2001)[hereinafter CISG]. For example, the question of whether to classify softwaretransactions as goods transactions arises in contexts other than the sale of goods, suchas their treatment under trade agreements within the WTO. See, e.g., Stewart A.Baker et al., E-Products and the WTO, 35 Int’l Law. 5 (2001); Joseph Tasker, Jr., TheInformation Technology Agreement: Building A Global Information InfrastructureWhile Avoiding Customs Classification Disputes, 26 Brook. J. Int’l L. 917, 947 (2001).31. For selected articles on the extension of the Convention on the InternationalSale of Goods to software see infra note 34. The question of whether informationtransactions are analogous to goods transactions is being debated in many areas inaddition to the area of general contract law. In WTO discussions, for example, thequestion is whether information fits within GATT (goods) or GATS (services).There is a second issue raised about the coverage of the CISG: whether itshould deal with electronic transactions—i.e., those contracts electronically created.The question of the medium of the communication, dealt with by the UNCITRALModel Law on Electronic Commerce, is distinct from the question of the nature of thesubject matter of the transaction.32. CISG, supra note 30, at Annex I. A third limitation in the application of theCISG is that it is inapplicable to consumer transactions, which currently represent asignificant proportion of international electronic commerce.33. Id. 21-22.34. See, e.g., Christina H. Ramberg, The E-Commerce Directive and Formation ofContract in a Comparative Perspective, 26 Eur. L. Rev. 449 (2001) (urging extension ofCISG to services and intangibles to deal with electronic commerce and noting that the
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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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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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Page 180 and 181: Taking UCITA on the Road: WhatLesso
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Page 220 and 221: Other Substantive IssuesThere are,
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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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