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Week 5.2: Electronic Commerce: Information
licenses: Contract formation, Enforcement and Warranties:
Required Reading:
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Contract formation and validity
under the UCC and the common law: ProCD v Zeidenberg
at SAIL 480-489. Contrast Novell at SAIL 489-490. |
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Contract formation under UCITA:
SAIL at 500-502. Further see proposal to amend
UCITA contract formation rules in National Conference
of Commissioners on Uniform State Laws, Report
of UCITA Standby Committee, December 17, 2001:
http://www.nccusl.org/nccusl/UCITA-2001-comm-fin.htm> |
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Extra legal enforcement and self
help: American Computer Trust Leasing v Jack Farrell
Implement Co, SAIL 505-512. Further see Report
of UCITA Standby Committee, December 17, 2001:
http://www.nccusl.org/nccusl/UCITA-2001-comm-fin.htm> |
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Warranties and Disclaimers: Neilson
Business Equipment v Monteleone: SAIL 513-16;
Further see Report of UCITA Standby Committee,
December 17, 2001: http://www.nccusl.org/nccusl/UCITA-2001-comm-fin.htm> |
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The Contract-Intellectual Property
Boundary: Vault v Quaid at SAIL 517-522. On UCITA
and reverse engineering see Report of UCITA Standby
Committee, December 17, 2001: http://www.nccusl.org/nccusl/UCITA-2001-comm-fin.htm> |
Optional reading:
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For a full text of UCITA see Final
Act with Comments, August 2001 at http://www.ucitaonline.com/ucita.html |
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Re UCC Article 2 software exclusion
see http://www.ucitaonline.com/ucc2ii.html> |
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How does UCITA apply to open source
licenses? See SAIL at 532-33; and Report of UCITA
Standby Committee, December 17, 2001: http://www.nccusl.org/nccusl/UCITA-2001-comm-fin.htm> |
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For further reading and a selected listing
of law review articles about former draft Article
2B now UCITA see http://www.2bguide.com/legart.html>
In particular, see Jerome Reichman and Jonathan
Franklin, Privately Legislated Intellectual
Property Rights: The Limits of Article 2B of
the UCC 1998, Berkeley 2B Conference; and Pamela
Samuelson, Legally Speaking: Does Information
Really Want To Be Licensed?, online June 11,
1998: generally see conference papers, Berkeley
Technology Law Journal, volume 13, no. 3, Fall
1998; 36 Houston Law Review No. 1 (Spring 1999),
Symposium: Licensing in The Digital Age.
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Discussion
| 1. |
Consider ProCD and Novell: Are
there legal differences between "contracts"
and "licenses of IPRs"? |
| 2. |
Evaluate the concept of "manifest
assent" as manifested in ProCD and UCITA. |
| 3. |
Problem: 6.1 at SAIL 504-5. |
| 4. |
Evaluate the current UCITA self-help
measures? To what extent should the law allow
for a private ordering (Consider Jack Farrell
at SAIL 505 and see Comments at SAIL 513)? To
what extent should there be a "judicial process"?
(SAIL 513). |
| 5. |
What does and should a warranty
on software cover? SAIL at 516. What position
does UCITA take? |
| 6. |
Should digital information generally
be treated differently from software as such?
SAIL 517. |
| 7. |
Should the law distinguish between
liability for factual misstatements (which the
First Amendment may protect) and liability for
a database containing software flaws that cause
system failure? SAIL at 517. |
| 8. |
In the event the Louisiana License
Act is preempted by federal law, could state contract
law (or the UCC) provide that agreements prohibiting
reverse engineering will be enforced under state
contract law? See Comments SAIL 529. |
| 9. |
Vault concerned a mass-market shrinkwrap
license: would the court have reached the same
conclusion had the license in question been negotiated? |
| 10. |
Should infringement of IPRs depend
on the terms of the license and the nature of
the breach? See SAIL 530-531. |
| 11. |
State the case for preempting contract
terms that conflict with IPRs. See SAIL 531. |
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