Vol 7 No 1 - Roger Williams University School of Law

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worth a thousand words. Picture a draft 261 single-spaced pageslong (or 123,829 words), consisting of eight parts with a total ofone-hundred four (104) substantive provisions.106 Its shear lengthand complexity makes UCITA a difficult act to understand, evenfor those who are familiar with its provisions. Additionally, thetechnical nature of much of the material and the detaileddefinitions (66 in total—many with substantive rules in thedefinitions) combine to make reading and understanding the act achallenge. Compounding the problem is the drafting style that isoften impenetrable, even for those familiar with UCITA. Anexample is section 601(d): “Except as otherwise provided in section603 and 604, in the case of a performance with respect to a copy,this section is subject to sections 606 through 610 and sections 704through 707.”107There are two factors that contributed to the long,comprehensive nature of the UCITA draft, which has ambitiouslytried to cover virtually every issue raised during the draftingprocess. Although the original project set out only to coversoftware, and UCITA, as finalized, covers only computerinformation transactions, drafts during the intervening stageswere much broader in scope, covering all transactions ininformation.108 This broad scope brought a wide variety ofindustries to the drafting table, all with their own agendas andissues; many provisions were incorporated into the final draft inan attempt to build support for the Act.109 When the scope wasnarrowed, many of these provisions were left in.110 Even with its106. If one considers the transition rules as well, there are 109 provisions in nineparts.107. UCITA § 601(d).108. See Pamela Samuelson & Kurt Opsahl, How Tensions Between IntellectualProperty Policy and UCITA Are Likely to be Resolved, in Patents, Copyrights,Trademarks, and Literary Property Course Handbook Series 741, 747 (1999) (“Initiallyonly software was involved, but then on-line databases came onboard, followed bydigital information products and services such as CD-ROMs. By 1995, the scope of theproposed law . . . had expanded to cover information licensing generally.”).109. There was a second tendency that arose when an industry raised substantialobjections to the draft: eliminate them from the act’s coverage. See UCITA § 103(d)(excluding, inter alia, financial services transactions; insurance services transactions;motion picture or audio or visual programming; sound recordings, musical works, orphonorecords; and telecommunications products or services).110. UCITA has been analogized to a huge Christmas tree with ornaments forevery possible industry; the problem is that when the scope was changed and theChristmas tree was cut back, the number of ornaments remained the same.
narrowed scope, however, there are those who have pointed outthat the multiplicity of types of transactions covered by UCITA(ranging from off-the-shelf purchases of software, to accesscontracts, to contracts and to design software or databases) makesa “one size fits all” strategy unworkable.111 “The net result is that(UCITA), in trying to be all things to all types of computertransactions, has reached a level of complexity that is at oddswith . . . [the] goals of simplicity and clarification.”112A second factor contributing to the length and complexity wasthe desire to include provisions that were deemed essential to“sell” UCITA to legislatures and others. One such set ofprovisions are those dealing with contracting electronically (e.g.,using electronic mail or the Internet).113 Ironically, at the sametime UCITA was being drafted, the National Conference wasworking on a separate product—the Uniform ElectronicTransactions Act114—covering precisely those issues: electroniccontracting. Questions were repeatedly raised during the draftingprocess about the need to include such provisions in UCITA inlight of this separate Conference product;115 the justificationarticulated for keeping these provisions in UCITA was that itwould be better for those under UCITA to have all contractingrules included in one place. A more likely explanation for thereticence to remove these provisions is that these were exactly the111. See O’Rourke, supra note 73, at 648 (noting to the extent that the productconsists of a bundle of rights granted under a license, the contract and not anyobjective tangible characteristics defines the product; the result is that a change incontract terms changes the product and results in a multiplicity of types of contracts).112. Id. at 647.113. By contrast, those developing other types of e-commerce legislation found itimportant to distinguish between the rules governing electronic contracting in general,and the substantive rules governing the underlying transaction. Thus, the UNCITALModel Law on Electronic Commerce and the Uniform Electronic Transactions Act focussolely on the use of an electronic medium to contract and do not attempt to combinethose issues with the substantive ones. See also O’Rourke, supra note 73, at 648(noting that the unifying factor in the European E-Commerce Directive was the meansof contracting rather than the subject matter of the contract, and suggesting thatUCITA might “benefit from some synthesis” with the Commission Directive).114. The Uniform Electronic Transactions Act (UETA) was adopted by theNational Conference of Commissioners on Uniform State Laws in August of 1999. Thefull text of the act, with comments, is available athttp://www.law.upenn.edu/bll/ulc/fnact99/1990s/ ueta99.htm (last visited Nov. 17,2001). As of September 2001, the UETA had been enacted in 38 states. Up-to-dateinformation on the enactment status of the UETA may be found athttp://www.nccusl.org/uniformact_factsheet/uniformacts-fs-ueta.asp.115. Indeed, the ALI was one of those questioning the need for those provisions.
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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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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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Page 172 and 173: decrease innovation.30 On the other
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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 192 and 193: enactment of the draft. This led to
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Page 202 and 203: form license of information.63 Alth
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Page 214 and 215: types of provisions being sought by
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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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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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