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such application.35 To the extent, however, that the result isarguably unclear, it has been maintained that the CISG should beextended to services and intangibles to deal with electroniccommerce.36The United Nations Commission on International Trade Law,which was responsible for the drafting of the CISG, has also beena key player in the development of legal structures for electroniccommerce: in 1996, it completed its work on the Model Law onElectronic Commerce,37 and in 2001 it completed work on theModel Law on Electronic Signatures.38 In its deliberations in thewinter of 2001 on potential future work in the area, theUNCITRAL Working Group on Electronic Commerce turned itsattention to the CISG.39 In addition to looking at whether thePrinciples of European Contract Law and the UNIDROIT Principles on InternationalCommercial Contracts had already extended many of the provisions of the CISGoutside the goods context); Frank Diedrich, Maintaining Uniformity in InternationalUniform Law Via Autonomous Interpretations: Software Contracts and the CISG, 8Pace Int’l L. Rev. 303, 336 (1996) (stating that CISG can be applied to computersoftware); Trevor Cox, Chaos Versus Uniformity: The Divergent Views of Software inthe International Community, 4 Vindabona J. Int’l Com. L. & Arb. 3 (2000); see alsoJames E. Bailey, Facing the Truth: Seeing the Convention on Contracts for theInternational Sale of Goods as an Obstacle to a Uniform Law of International Sales, 32Cornell Int’l L.J. 273 (1999) (challenging belief that CISG reaches uniformity); MarcusG. Larson, Applying Uniform Sales Law to International Software Transactions: TheUse of the CISG, Its Shortcomings, and a Comparative Look at How the Proposed UCCArticle 2B Would Remedy Them, 5 Tul. J. Int’l & Comp. L. 445 (1997) (discussing theapplicability of CISG to software sales).35. OLG Koln, 26 August 1994, Neue Juristische Wochershrift Rechtsprechungs-Report 246 (1995) = CLOUT case n. 122; OLG Koblenz, 17 September 1993, Recht derinternationale Wirtschaft 934 (1993) = CLOUT case n. 281. The CLOUT reference is tothe UNCITRAL project (Case Law on UNCITRAL Texts) reporting on all casesinvolving the interpretation of the CISG and other UNCITRAL products. Seehttp://www.uncitral.org.36. See supra note 34.37. U.N. Comm’n on Int’l Trade Law, UNCITRAL Model Law on ElectronicCommerce with Guide to Enactment (Dec. 16, 1996), available athttp://www.uncitral.org/english/texts/electcom/ml-ecomm.htm (last visited Sept. 8,2001).38. U.N. Comm’n on Int’l Trade Law, UNCITRAL Model Law on ElectronicSignatures, U.N. Doc. A/56/17, Supp. 17, Annex II (June 23, 2001), available athttp://www.uncitral.org/english/texts/electcom/ml-elecsig-e.pdf (last visited Nov. 17,2001); see also Guide to Enactment of the UNCITRAL Model Law on ElectronicSignatures, U.N. Doc. A/CN.9/WG.IV/WP.88 (Jan. 30, 2001), available athttp://www.uncitral.org/english/workinggroups/wg_ec/wp-88e.pdf (last visited Sept. 8,2001).39. See Legal Aspects of Electronic Commerce: Possible Future Work in the Field ofElectronic Contracting: An Analysis of the United Nations Convention on Contracts for
sales Convention needs to be updated to take into account theelectronic formation of contracts, the question was raised as towhether its scope should be extended beyond goods toinformation—or what the report called “virtual goods.” “It isapparent that a clarification of whether the software should beconsidered as ‘goods’ in the sense of the Convention would beuseful in order to ensure uniformity.”40 Revisions could clarifythat the CISG covers all software, only software incorporated intotangible goods, or only off-the-shelf (i.e., non-custom) software.41The scope issue under the Convention involves not only theissue of what constitutes “goods” but what constitutes a “sale.”Much software is not sold but rather licensed. “The differences inthese approaches are considerable. A sales contract, for instance,frees the buyer (i.e., “user”) from restrictions as to the use of theproduct bought and, thus, clearly delineates the boundaries ofcontrol that may be exercised . . . In contrast, a license agreementallows the producer or developer of ‘virtual goods’ (or services) toexercise control over the product down through the licensingchain.”42The issues confronting UNCITRAL then included whether thescope of the CISG should be broadened to pick up softwarelicensing agreements, or whether the rules derived from the CISGshould be developed for these kinds of transactions. The WorkingGroup report to UNCITRAL, however, placed more emphasis onthe application of the CISG to contracts concluded by electronicmeans for the international sale of tangible goods “in view of theurgent need for the introduction of the legal rules that would beneeded to bring certainty and predictability to the internationalregime governing Internet-based and other electronic commercetransactions.”43 Apparently recognizing the controversysurrounding the enactment of UCITA, the report was cautious inrecommending any expansion of the CISG to non-tangible goodstransactions: “Broadening the scope of such work so as to includethe International Sale of Goods, U.N. Doc. A/CN.9/WG/IV/WP.91 (Feb. 9, 2001)[hereinafter Legal Aspects].40. Id. 24.41. Id.42. Id. 28.43. U.N. Comm’n on Int’l Trade Law, Report of the Working Group on ElectronicCommerce on the Work of Its 38th Session, U.N. Doc. A/CN.9/484, 95 (Apr. 14, 2001).The issues preliminarily identified were: offer and acceptance; receipt and dispatch;internationality of the sales transaction; and parties to the sales transaction.
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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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commerce.”320 Is innovation stifl
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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 220 and 221: Other Substantive IssuesThere are,
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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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