Vol 7 No 1 - Roger Williams University School of Law

form license of information.63 Although there is generalagreement that parties should be able to contractually agree tothe terms applicable to their transaction,64 the continuing refrainheard from opponents is that under UCITA there is no truebargain and no true “meeting of minds,” and thus there is nocontract in a classical sense.65 Such fictional assent is arguablypresent in a host of circumstances leading to a binding agreementunder UCITA. For example, assent may be found by a simple“click of the mouse”—or a double-click—when a person isattempting to access information. Thus, the person may not haveread the terms, known they were present, or even known that the“click” was a binding agreement, and still be bound to thetransaction.66 Assent may be found where an individual clicksthrough one screen on a website, even though the governing termsare not themselves displayed on the website but are simplyavailable should the individual choose to click through to anotherpage. The terms to which the party agreed may allow the licensor63. UCITA provides that an opportunity to review is presented if licensor displays“prominently and in close proximity to a description of the computer information, or toinstructions or steps for acquiring it, the standard terms or a reference to an electroniclocation from which they can be readily obtained.” UCITA § 211. Alternatively, thelicense can “disclos[e] the availability of the standard terms . . . on the site . . . andpromptly furnish[] a copy of th[os]e standard terms on request before the transfer ofthe computer information . . . .” Id. In either case, the licensor is not permitted toprevent the printing or storage of the standard terms for archival or review purposesby the licensee. Id.64. This position was advanced by the Clinton administration as critical to thedeveloping framework for electronic commerce. Clinton & Gore, Framework, supranote 7 (“In general, parties should be able to do business with each other on theInternet under whatever terms and conditions they agree upon.”). Freedom of contracthas been one of the key foundations of UCITA. See Carlyle C. Ring, Jr., Uniform Rulesfor Internet Information Transactions: An Overview of Proposed UCITA, 38 Duq. L.Rev. 319 (2000).65. See, e.g., Jean Braucher, Uniform Computer Information Transactions Act(UCITA): Objections From The Consumer Perspective, 5 Cyberspace Law., Sept. 2000,at 2, available at http://www.cpsr.org/program/UCITA/braucher.html (UCITA“validates fictional assent (e.g., double clicking a mouse to get access to a product afteryou’ve paid for it) and even allows one party to define any conduct as assent in futuretransactions, without requiring that form terms meet consumers’ reasonableexpectations.”); Chow, supra note 51, at 337.66. Under UCITA, a person “manifests assent” if the person, after having anopportunity to review the record or term, intentionally engages in conduct with reasonto know that the other party assents from that conduct. UCITA § 112(a). It is notnecessary that the person know whether the record or term exists; rather he or shesimply needs an opportunity to review. Nor is it necessary for the person to know thattheir conduct constitutes assent; there need only be a “reason to know.”