Vol 7 No 1 - Roger Williams University School of Law

law,153 and many of UCITA’s provisions deserve attention andstudy to determine what can be learned from them. UCITA hassucceeded in identifying many of the electronic commerce issuesthat need resolution, even if the solutions it proposes do notultimately prevail. In addition, UCITA has succeeded informulating some more general concepts that represent a stepforward in the development of the law. The challenge is to ferretout the good.One concept that originates in UCITA, that of a “massmarket” license, deserves particular study.154 In the past, muchlegislation has distinguished between transactions based upon theidentity of the parties to the transaction: e.g., merchant versusnon-merchant155 or consumer versus merchant. UCITA, however,recognizes that it may make sense to distinguish betweentransactions based not on the identity of the parties, but on thenature of the contracting process leading to the agreement. Oneshould distinguish the execution from the concept of the massmarket contract: whether or not one agrees with the particulars ofthe definition of the “mass market” license, or with the specifics ofthe rules applicable to such a license,156 the concept may become auseful tool for future analysis.A second example of an attempt in UCITA to deal withlegitimate issues is in the area of mistake. Although mistakesoccur in any environment and with regard to all kinds of subjectmatter, UCITA recognizes that the possibility of mistake in anelectronic environment is sufficiently high and the costs ofprotecting against such error relatively low so that legislativeinducements to reduce error and protection of individuals may beappropriate. As a result, UCITA contains a specific error153. See, e.g., Dreyfuss, Marketplace, supra note 124, at 49 (while criticizingUCITA, expresses enthusiasm for “a system along the lines” of UCITA—“a contractualcode facilitating information exchange, applicable uniformly throughout a tradingregion.”).154. See Holly K. Towle, Mass Market Transactions in the Uniform ComputerInformation Transactions Act, 38 Duq. L. Rev. 371 (2000).155. This is the distinction adopted in Article 2 of the Uniform Commercial Code.156. See, e.g., Chow, supra note 51 (critiquing section 109’s applicability to massmarket licenses). A frequent criticism of UCITA is the failure to recognize that massmarket licenses, to the extent that they are not negotiated and based on true assent,may need special rules in such areas as choice of law and forum and transferabilityrestrictions. See Braucher, supra note 65, at 2.