• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.19
• /
• pp.169-190
• /
• 2003

Uniform Computer Information Transactions Act (UCITA) for e-commerce in non-UCC and non-UETA transactions, promulgated in 1999. The Act Drafted by the National Conference of Commissioners on Uniform State Laws. UCITA applies to contracts to license or buy software, contracts to create computer programs, contracts for on-line access to databases and contracts to distribute information over the Internet. UCITA does not apply to goods such as television sets, stereo equipment, airplanes or traditional books and publications. Goods generally remain subject to UCC Article 2 or Article 2A. Many transactions may include more than computer information. If that transaction covers non-goods subject matter, UCITA applies only to the part of the transaction which is computer information and other law applies to the other subject matter. In the event the other subject matter is goods, UCC Article 2 or 2A applies to the goods subject matter and UCITA applies to the computer information part. UCITA is coordinated with existing Articles 2 and 2A, so coverage of each to part of the transaction will be facilitated. With respect to other subject matter (primarily services) UCC Articles 2 and 2A have worked in mixed transactions with the common law applicable to the services.

• International Commerce and Information Review
• /
• v.12 no.3
• /
• pp.79-98
• /
• 2010

The National Conference of Commissioners on Uniform State Laws promulgated the Uniform Computer Information Transactions Act (UCITA) in 1999. In 2000 and 2002, this Act was also Amended. UCITA provides a comprehensive set of rules for licensing computer information, whether computer software or other clearly identified forms of computer information. Computerized databases and computerized music are other examples of computer information that would be subject to UCITA. It would also govern access contracts to sites containing computer information, whether on or off the Internet. UCITA would not govern contracts, even though they may be licensing contracts, for the traditional distribution of movies, books, periodicals, newspapers, or the like. Part 8 of UCITA provides a remedy structure somewhat modeled on that of Article 2 but adapted in significant respects to the different context of a computer information transaction. For example, 808 of UCITA recognizes the focus in a license context for a licensor's remedy should properly be on recovery for benefit conferred or for lost profit, rather than on damage measurement by a substitute transaction, where the license is non-exclusive so additional transactions are permitted and there is very little cost in reproduction of the information and its redistribution. Section 816 of UCITA also contains very important limitations on the generally recognized common law right of self-help as applicable in the electronic context.

• International Commerce and Information Review
• /
• v.11 no.1
• /
• pp.45-66
• /
• 2009

Licensing of information is the standard of the computer information business today. The huge bulk of vendors license their computer information products. The Uniform Computer Information Transactions Act(UCITA), therefore, does not originate licensing contracts. UCITA was developed to provide basic, recognizable default rules for the existing licensing activity that goes on and expands as commerce in computer information expands. UCITA's rules govern licensing of contracts for computer information from formation through performance, including remedies if there is a breach of contract. Included in UCITA are rules for warranties, both implied and express, and rules pertaining to risk of loss in a computer information transaction. Most of the rules in UCITA are the traditional and familiar rules of contract from the law of sales and from the common law, but adapted to the special nature of computer information licensing contracts. Freedom of contract is a dominating underlying policy for UCITA, exactly as that principle is the foundation for the law of commercial transactions, generally, and exactly as that law has served all commercial transactions in the United States and has contributed to the economic growth and health of the United States.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.29
• /
• pp.197-223
• /
• 2006

Uniform Computer Information Transactions Act (UCITA) is the first legislative attempt in the world that deals with transaction of digital information. This however gave rise to endless controversies and as of February 10, 2003, its life as the uniform law has expired. There are four kinds of relationships that UCITA regulates for the entities involved in information trading namely, 1) Relationship between licenser and licensee 2) The triangle relationship between dealers, end-user and publisher 3) Relationship between information right transferor and transferee 4) Relationship between financier, licenser and licensee. Amongst these, the most significant one is the triangle relationship amongst the publisher, commonly known as the licenser in the mass market, end-user and dealer. At the essence of the relationship is that the dealers is liable to refund the payment for the information regarding the end user if he/she does not agree with the publisher on the license of the common market. Looking at the relationship between license transferor and transferee, the transfer of license may be prohibited but the special contract must be conspicuously carried out. The relationship financier, licenser and licensee is unique to the United States and is rather unfamiliar to us. UCITA has been criticized for preferentially protecting the benefits of licensers especially when it comes to the specific regulations for the relationship. Therefore, it is not advisable to blindly accept UCITA regulations. However, UCITA does have components that we can utilize in formulating our own digital information trade regulations, save its proprietary nature as an American law and its preferential treatment for licensers.

• Journal of Digital Convergence
• /
• v.2 no.1
• /
• pp.93-112
• /
• 2004

A license under UCITA(Uniform Computer Information Transactions Act) which represents the first comprehensive uniform computer information licensing law is not fundamentally rooted in intellectual property law such as patent or copyright law. A license under UCITA is simply a commercial contract, dependent wholly on the parties' ability to enter into a normal, commercial contract, just as a contract of sale or lease is simply and wholly a commercial contract. However, intellectual property rights may be licensed in a contract subject to UCITA. UCITA may not be used to vary or extend informational rights that are intellectual property rights, and expressly recognizes preemption by copyright, patent, or other federal intellectual property law in Section 105(b). Like the law of sales and leases, in general, the right to contract is constrained by principles of unconscionability, good faith and fair dealing, UCITA has an additional restraint, an express power for a court to deny enforcement of a provision in a licensing contract that violates fundamental public policy. This public policy defense is unique in UCITA. An essential purpose of this defense is to give courts some latitude in reconciling commercial licensing law with the principles of intellectual property law. Most intellectual property law is federal, and UCITA expressly recognizes the preemptive effect of that federal law. But the public policy defense gives courts an additional power to consider intellectual property principles purely within the context commercial law.

• Proceedings of the Korean Society for Information Management Conference
• /
• 2002.08a
• /
• pp.89-97
• /
• 2002

정보사회의 새로운 유형인 "컴퓨터정보"(computer information)를 계약의 객체로 삼는 무체물(intangibles)의 거래에 적용되는 법은 아직까지는 명확하지 않다. 즉, 컴퓨터정보가 수반되는 무체물의 라이센스거래에 있어서는 그 거래객체가 유형의 물품이 아닌 무형의 지적재산이라는 점에서 기존의 거래에 있어 중심이 되어 온 물품매매와는 다른 법제적인 접근이 필요한 바, NCCUSL에서 UCITA을 제정하였다. UCITA는 "컴퓨터정보거래에 관한 상계약법전"이며, "컴퓨터정보"가 수반되는 새로운 유형의 거래를 규정하기 위한 법안으로 계약을 다루는 법이지 재산권을 다루는 법은 아니다. 이러한 UCITA에 대응하는 우리 국내법은 없다. 따라서 본고에서는 향후 급증할 것으로 예상되는 컴퓨터정보거래에서 법률관계의 안전성·예측가능성의 제고 측면에서 가칭 "전자정보거래법"의 입법에 앞서 몇 가지 시사점을 제시하고자 한다.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.23
• /
• pp.155-219
• /
• 2004

This paper focuses on two recent legislative developments in electronic commerce: the "Uniform Computer Information Transactions Act" ("UCITA") of USA and the "preliminary draft convention on the use of data message in [international trade] [the context of international contracts]" ("preliminary draft Convention") of UNCITRAL. UCITA provides rules contracts for computer information transactions. UCITA supplies modified contract formation rules adapted to permit and to facilitate electronic contracting. UCITA also adjusts commonly recognized warranties as appropriate for computer information transactions; for example, to recognize the international context in connection with protection against infringement and misappropriation, and First Amendment considerations involved with informational content. Furthermore, UCITA adapts traditional rules as to what is acceptable performance to the context of computer information transactions, including providing rules for the protection of the parties concerning the electronic regulation of performance to clarify that the appropriate general rule is one of material breach with respect to cancellation (rather than so-called perfect tender). UCITA also supplies guidance in the case of certain specialized types of contracts, e.g., access contracts and for termination of contracts. While for the most part carrying over the familiar rules of Article 2 concerning breach when appropriate in the context of the tangible medium on which the information is fixed, but also adapting common law rules and rules from Article 2 on waiver, cure, assurance and anticipatory breach to the context of computer information transactions, UCITA provides a remedy structure somewhat modeled on that of Article 2 but adapted in significant respects to the different context of a computer information transaction. For example, UCITA contains very important limitations on the generally recognized common law right of self-help as applicable in the electronic context. The UNCITRAL's preliminary draft Convention applies to the use of data messages in connection with an existing or contemplated contract between parties whose places of business are in different States. Nothing in the Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business or other information, or relieves a party from the legal consequences of making inaccurate or false statements in that regard. Likewise, nothing in the Convention requires a contract or any other communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract to be made or evidenced in any particular form. Under the Convention, a communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract, including an offer and the acceptance of an offer, is conveyed by means of data messages. Also, the Convention provides for use of automated information systems for contract formation: a contract formed by the interaction of an automated information system and a person, or by the interaction of automated information systems, shall not be denied on the sole ground that no person reviewed each of the individual actions carried out by such systems or the resulting agreement. Further, the Convention provides that, unless otherwise agreed by the parties, a contract concluded by a person that accesses an automated information system of another party has no legal effect and is not enforceable if the person made an error in a data message and (a) the automated information system did not provide the person with an opportunity to prevent or correct the error; (b) the person notifies the other party of the error as soon as practicable when the person making the error learns of it and indicates that he or she made an error in the data message; (c) The person takes reasonable steps, including steps that conform to the other party's instructions, to return the goods or services received, if any, as a result of the error or, if instructed to do so, to destroy such goods or services.

• 한국디지털정책학회:학술대회논문집
• /
• 2004.11a
• /
• pp.55-73
• /
• 2004

The Internet is a wonderland that can be enjoyed by the young, old, and those in-between. It is also a vast commercial market where many contracts are formed every second. The Internet and E-Commerce have created new situations that have generated sweeping proposals for fundamental changes in contract law. During the first half of the 20th Century. when many businesses expanded their geographic scope, there was a tremendous desire for uniform treatment of contracts for the sale of goods throughout the U.S.A. and the whole world. That same dynamic is now occurring in E-Commerce. There is a general recognition of the desirability of uniform contract law to govern E-commerce, but to date that does not exist, though there are extensive proposals for reform of contract law on the Internet. E-Commerce is currently plagued by some of the same problems that led to the passage of the UCC. In the absence of uniform legislation, state-by-state differences are inevitable with respect to E-Commerce. State-by-state differences in E-Commerce contract law is widely viewed as undesirable. To deal with this problem, a number of uniform bills have been proposed including UCITA, UETA, and revisions to Article 2 of the UCC (Subpart B). The thrust of these uniform acts is to create legal parity between paper records and electronic records. There is considerable resistance by consumer groups to this parity and progress towards Passage of UCITA, UETA, and revised Article 2 has been slow. The UCITA covers licenses of computer software but does not cover the sale oil goods on the Internet. The scope of the UCITA includes computer software. multimedia interactive products, computer data and databases, and Internet and online information, The UETA deals comprehensively with E-Commerce and contract law. The UCC covers the sale of goods, which does not necessarily involve E-Commerce. The basic principles of contract law are modified to deal with Internet transactions. Intent is inferred from the operations of electronic agents and "signatures" can occur with a response to an invitation to click to accept.

• 한국디지털정책학회:학술대회논문집
• /
• 2004.05a
• /
• pp.205-228
• /
• 2004

오늘날 정보와 정보서비스 나아가 정보거래는 경제의 중심에 그 자리를 잡아가고 있다. 이러한 변화중의 하나가 방법의 다양화이다. 현대적 시장의 수요를 충족하는 정보제품을 제작하고 이를 배포함에 있어 그 방법의 다양화가 이루어지고 있는 것이다. 개인용 컴퓨터의 사용이 일반화됨에 따라 범용컴퓨터소프트웨어가 일반소매시장에서 거래되는데, 사용자는 이를 대부분 소프트웨어 상점에 매매의 형식으로 구입한다. 그러나 이 소프트웨어를 사용하기 위해서는 사용자가 동 소프트웨어의 출판인(publisher) 으로부터 라이센스를 득해야 하고, 이를 위해 출판인과사용자 사이에 라이센스 계약이 체결된다. 이러한 라이센스계약의 체결에 있어 소위 "쉬링크랩" (shrink-warp) 방식이 널리 사용되는데, 이 방식의 라이센스계약, 즉 쉬링크랩 라이센스 혹은 쉬링크랩라이센스계약이 미국 계약 법하에서 완전한 효력 즉 강제력을 가지는 지가 문제되어 왔다. 쉬링크랩라이센스는 소프트웨어거래의 효율성을 높이고 거래비용을 감소시킴으로써 규모의 경제를 가능케 하고 나아가 다양한 지적재산권의 보호를 받는 소프트웨어의 탄력적인 라이센스를 가능케 함으로써 결국 소프트웨어출판인과 최종사용자 모두가 그 혜택을 누리게 된다. 쉬링크랩라이센스에 의한 소프트웨어 거래의 경우 라이센스이용자에 의한 대금지급이 선행하고 그 이후에 비로소 계약조건의 검토가 행하여진다는 사정에 기하여 종래 판례법에서 그 강제력이 부인되어 오다가 정보 산업의 급속하게 성장하고 이에 따라 그 사용에 불가피하다는 현실적인 요구에 응하여 판례법은 물론 UCITA 라는 제정법에 의하여 그 강제력을 인정받게 되었다. UCITA 는 컴퓨터소프트웨어 등의 컴퓨터정보거래와 관련하여 체결되는 라이센스 계약의 모호한 법적 상태를 명확히 한다는 점에서 중요한 입법이라 평가된다. UCITA 는 쉬링크랩라이센스의 효력 문제와 동 라이센스에 적용될 법의 해결이라는 통일법으로서의 주요한 목적 중의 하나를 달성하고 있다. 더욱이 오늘날 우리 경제는 소위 정보혁명(information revolution) 이라 하는 또 다른 근본적 변화를 경험하고 있다.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.20
• /
• pp.129-150
• /
• 2003

Software license agreements, to be useful in the mass market, could not be individually negotiated, and had to be standardized and concise. The software license agreement needs to be presented to the licensee-users in a fashion that would allow for mass distribution of software, also for it to enforceable, that would draw the users' attention to the terms and conditions under which the publisher allowed the use of the software. These needs have been accomplished, with or without fail, through so called the "shrink-wrap licenses" Shrink-wrap licenses purpose to transfer computer softwares to their users by defining the terms and conditions of use of the software without implicating the "first sale doctrine" of the Copyright Act. These shrink-wrap licenses have become essential to the software industry. However, in USA, the law applicable to these licenses has been unclear and unsettled. Courts have struggled to develop a coherent framework governing their enforceability. Meanwhile, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in USA promulgated the Uniform Computer Information Transaction Act ("UCITA") governing contracts for computer information transaction on July 29, 1999. One clear objective of UCITA was to settle the law governing the enforceability of shrink-wrap licenses. In these respects, this paper first introduces the various forms that shrink-wrap licenses take(at Part II. Section 1.), and explains the main advantages of them(at Part II. Section 2.) Here it shows how shrink-wrap licenses value themselves for both software publishers and users, including that shrink-wrap licenses are a valuable contracting tool because they provide vital information and rights to software users and because they permit the contracting flexibility that is essential for today's software products. Next, this paper describes the current legal framework applicable to shrink-wrap licenses in USA(at Part III). Here it shows that in USA the development of case law governing shrink-wrap licenses occurred in two distinct stages. At first stage, judicial hostility toward shrink-wrap licenses marked such that they were not enforced pursuant to Article 2 of the Uniform Commercial Code. At second stage, courts began to recognize the pervasiveness of shrink-wrap licenses, their indispensability to the rapidly expanding information technology industry, and the urgent need to enforce such licenses in order to maintain low prices for consumers of computer hardware or software, resulting in the recognition of shrink-wrap licenses. Finally, in view of the importance of UCITA, this paper examines how it will affect the enforceability of shrink-wrap licenses(at Part IV). The drafters of UCITA, as well as the scholars and practitioners who have criticized it, agree that it validates shrink-wrap licenses, provided certain procedural protections are afforded to purchasers. These procedural protections include the licensee end-user must (i) manifest his assent to the shrink-wrap license, (ii) have an opportunity to review the shrink-wrap license, (iii) have a right to return the product without costs.