Vol 7 No 1 - Roger Williams University School of Law

to define any conduct as assent in the future, or it may allow thelicensor in access contracts (involving electronic access toinformation on another’s system)67 to unilaterally change theterms of the agreement. Thus, the concept of “manifestation ofassent” has been attacked as a mere fiction.68 Indeed, recentevents have demonstrated that not only are licensees frequentlyunaware of the terms in click-wrap agreements, but sometimeseven the licensors are unaware of what they have in their ownstandard form provisions, with the result that “implied assent” iscarried to a new level.69Whatever one thinks of the “assent agreement” underdomestic United States law, there is the additional problem of itscompatibility with legal principles internationally. The expansiveconcept of personal autonomy exemplified in UCITA has also beencriticized as contrary to non-U.S. concepts of assent.70Additionally, the UCITA provisions seems to conflict with67. See UCITA § 102 (a)(1).68. But see Raymond T. Nimmer, International Information Transactions: AnEssay on Law in an Information Society, 26 Brook. J. Int’l L. 5, 44-45 (2000).Some have argued that a double click on an ‘I agree’ icon is only ‘fictional’assent that should be ignored. . . . Most likely, however, this argument isdisingenuous; the persons using it actually believe that parties should not bebound by standard forms, even in the online world. But in Internetcommerce, all contracts involve standard forms. Does that then indicate thatcontractual terms cannot be agreed to online? The consequences of such arule would be draconian and would contradict the basic notion of contract andthe economic reality of modern information commerce.Id.69. A recent incident involved Microsoft’s license for Passport, which purported toclaim an ownership interest in all personal data passing through the system, thusgranting Microsoft the right to “use, modify, copy, distribute . . . or sell” all personaldata. When this draconian term (which had been included in the license for some time)finally came to light, Microsoft responded that it was unaware of the term in its ownlicensing agreement. See Farhad Manjoo, Fine Print Not Necessarily in Ink, WiredNews (Apr. 6, 2001), available athttp://www.wired.com/news/print/0,1294,42858,00.html (last visited Sept. 8, 2001).The irony is, of course, that without judicial intervention setting aside the terms in theMicrosoft license, the licensor and the licensee have agreed to terms of which neitherare aware! Yet there has been the creation of an agreement under UCITA.70. This is especially true in the intellectual property area. See Samuel K.Murumba, The Emerging Law of the Digital Domain and the Contract/IP Interface: AnAntipodean Perspective, 26 Brook. J. Int’l L. 91, 113 (2000) (“UCITA itself rests less onany utilitarian conception and more on that most neo-Kantian and neo-classical of allconceptions: autonomy. There is an unmistakable resistance in Australia, and it seemsin Europe, to a wholesale embrace of this super-naturalistic view of intellectualproperty rights, whether it comes in the guise of autonomy or code or both.”).