The Principles of the Law of Software Contracts, or the “Principles,” seek to “unify and clarify” the law of software transactions. The drafters, however, excluded “digital content” from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as “classification confusion.” Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to resolve the conundrum of how to balance the proprietary rights and interests of licensor-owners and the rights and interests of licensee-consumers. This conundrum in turn has created problems of contractual form and user assent that arose out of software transactions but which have much more troubling applications in other contexts. With (and sometimes, even without) a click of a mouse, one can relinquish intellectual property, privacy, and expression rights. This Essay proposes that the Principles should generally apply to digital content. The Principles are an impressive accomplishment and go a long way toward unifying and clarifying the law of software transactions. This Essay urges that they go even further.
The Principals of the Law of Software Contracts: At Odds with Copyright, Consumer, and European Law?
This Article will describe the drafting history of the Principles of the Law of Software Contracts, with particular attention to the extent of consumer and public interest group representation in the process. The drafting process, I will argue, did not take adequate stock of problems identified in the late 1990s with proposed Article 2B of the Uniform Commercial Code, and then the Uniform Computer Information Transactions Act. Persistent problems include provisions encouraging terms that violate public policy, that constitute copyright or patent misuse by attempting to prohibit fair use or withdraw material from the public domain, or that are not properly disclosed before the purchase. The difference between the present situation and the 1990s, however, is that European Union (EU) directives on the subject of consumer protection and electronic commerce are of much greater importance today, particularly given the explosion in e-commerce between the United States and Europe. This Article will analyze whether the Principles do enough to protect the interests of consumers and the public in four key areas: (1) consistency with U.S. federal and state statutory and common law, (2) clear and conspicuous disclosure of all relevant terms and conditions prior to the sale, (3) regulation and prevention of one-sided and unconscionable contract terms, and (4) consistency with EU and domestic European law. The Principles and the comments thereto appear to sanction conduct that is in tension with the federal Copyright and Patent Acts, the common law of several U.S. states, and the EU's directives on Unfair Terms in Consumer Contracts (1993) and Protection of Consumers in Respect of Distance Contracts (1997). The Principles seem to be an imperfect attempt to unify the law of software contracts, codify best practices, and develop the law in a desirable direction. Finally, the Article will discuss when it is appropriate to harmonize U.S. and EU law and public policy.
What's Software Got To Do with It? The ALI Principles of the Law of Software Contracts
In May 2009, the American Law Institute (ALI) approved its Principles of the Law of Software Contracts (Principles). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (UCC) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (UCITA) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states enacting “bomb shelter” provisions to ensure that UCITA would never enter those states by way of a choice of law clause. Although the Principles was conceived, in part, as a counterweight to UCITA, the latter was dead in the water by the time the Principles Project became active. Nevertheless, the Principles Project proceeded apace. This Article examines the results of that decision.
Principles of the Law of Software Contracts: Some Highlights
In this Essay, we discuss the nature of the Software Principles and describe some of what we believe are their highlights. By highlights, we mean not only Principles that we believe are helpful contributions to the goal of clarification and unification of software contract law, but also those that have already received some attention because of their controversial nature. Specifically, we first explain the focus of our project, which itself presents some challenging issues. We then discuss several of the specific Principles. We present the Principles' treatment of terms that may conflict with federal intellectual property law. We explain the Principles' approach to the thorny issue of what constitutes assent to electronic standard forms. We illustrate how the Principles have modified some of the UCC's warranty rules that, because of their fogginess, have created much litigation and controversy. Sticking with warranty issues, we discuss what is probably the most controversial Principle (at least among software vendors), namely, the nondisclaimable warranty of no material, hidden defects. Finally, we set forth the Principles' treatment of automated disablement of software's functionality.
Crucial and Routine Decisions: A New Explanation of Why Ideology Affects U.S. Supreme Court Decision Making the Way It Does
This Article is an attempt to show why the effect of ideological preferences in models of the Supreme Court's decisions works the way it does. First, I present an analysis of the expectations justices can form about the results of their decisions. Next, I suggest that for many kinds of cases the conditions for rational choice cannot be met consistently and that, as a consequence, justices use their policy preferences to reach decisions. I argue that the differential effect of attitudinal indicators in empirical studies turns on the type of decisions that are made in particular classes of Supreme Court cases. I then present an examination of Court decisions that supports this assertion. I conclude by discussing ramifications these ideas have for studies of Supreme Court decision making.
Sovereign Immunity, Anachronistic or Inherent: A Sword or a Shield?
The purpose of this Article is to give a brief history of the origin and development of the doctrine of sovereign immunity both in the common law and the civil law. After treating the doctrine's European origins, the Article will then cross the Atlantic and likewise sketch the development of the doctrine in the United States and Louisiana. After establishing this background, the doctrine and its myriad permutations can be examined as it applies to one of the greatest disasters in our country's history--Hurricane Katrina. At that point, the viability of the doctrine can be examined against the backdrop of the stark reality of the devastation and suffering wreaked upon Louisiana, caused in part by the errors and omissions of our federal government.
The Origins of Sale: Some Lessons from the Romans
The recognition of the contract of sale is rightly said to be a key achievement of the Roman jurists. In Roman law, it had three characteristics. First, a sale is entered into informally. The parties are bound without the use of any special formality such as an oath, a document, a deed, or even a handshake. Second, sale is what the Romans called a contract of good faith (bonae fidei) as distinguished from a contract of strict law (stricti iuris). The parties are bound, not only to what they said, but to all the obligations that follow as a matter of good faith. Third, a sale is binding upon consent before delivery of the goods to be sold or payment of any of the purchase price. Virtually all modern legal systems recognize a contract of sale with these three features. The Romans were the first.. . .
When Worlds Collide: The Supreme Court Confronts Federal Agencies with Federalism in Wyeth v. Levine
On March 4, 2009, in Wyeth v. Levine, the United States Supreme Court rejected the viability of a preamble to a 2006 Food and Drug Administration (FDA) prescription drug-labeling regulation that purported to preempt state tort law, concluding that it “does not merit deference.” The Court upheld the verdict of a Vermont jury in favor of plaintiff Diana Levine against the manufacture of the prescription drug, on state tort law failure-to-warn theories, for an injury she had suffered nine years before, in April 2000. The injury resulted in the amputation of her right forearm and ended her career as a professional musician. Had the Supreme Court given deference to the FDA “Preamble,” and held Ms. Levine's claim to be preempted by the FDA's approval of the drug, her $6.77 million jury award would have been vacated, and she would have gone uncompensated for the loss of her arm and her livelihood. Far beyond the consequences to a single plaintiff, the claims of any thousands of prescription drug plaintiffs in cases pending across the country--representing billions of dollars in compensatory damages--would have then been dismissed. Dismissal would leave these plaintiffs without recourse and would immunize prescription drug manufacturers from financial accountability for the health, safety, and economic depredations of dangerous or improperly marketed drugs.. . .
The Defense of Preemption: A View from the Trenches
Most lawyers who have any familiarity with the law of federal preemption, and in particular the United States Supreme Court's cases involving the preemption of state tort requirements, would freely admit that the law is a muddle. Beginning with the Court's fractured 1992 decision in Cipollone v. Liggett Group, Inc., which was argued twice before it was decided, the Court has issued a series of decisions, some of them fractured and confusing, that have alternatively cheered and flummoxed the plaintiffs' bar as well as product manufacturers, transportation companies, and other businesses that regularly rely on the preemption defense. Unfortunately, these cases--which are among the most hotly contested of all cases on the Supreme Court's docket, judging by amicus participation--have produced significant confusion in the law of preemption generally. As someone who has participated in many of these cases over the years since Cipollone, my purpose is to offer a few observations drawn from my own experience about some of the major disputed issues in preemption law today, including the proper role of courts in resolving preemption cases. I also hope to make a few broader points about the preemption doctrine that are often overlooked in the acrimonious debate over tort cases.. . .
Judicial Deference and Regulatory Preemption by Federal Agencies
This Article will attempt to describe the state of the law as it currently exists relating to preemption associated with agency regulations, especially in light of three preemption decisions by the Supreme Court in its October 2008 term—Wyeth v. Levine, Altria Group, Inc. v. Good, and Cuomo v. Clearing House Ass'n. The Article will then suggest how courts should assess claims of preemption of state law associated with federal agency regulations.