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Cyberlaw and the Global Economy Class 2.1: Online Transactions Harvard Law School Fall, 2004

Cyberlaw and the Global Economy Class 2.1: Online Transactions Harvard Law School Fall, 2004. John Palfrey September 16, 2004. Cyberlaw and the Global Economy. Commercial Transactions. 2.1 Online Transactions 2.2 Spam 2.3 Mergers & Acquisitions. Intellectual Property. Data Protection,

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Cyberlaw and the Global Economy Class 2.1: Online Transactions Harvard Law School Fall, 2004

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  1. Cyberlaw and the Global EconomyClass 2.1: Online TransactionsHarvard Law SchoolFall, 2004 John Palfrey September 16, 2004

  2. Cyberlaw and the Global Economy Commercial Transactions 2.1 Online Transactions 2.2 Spam 2.3 Mergers & Acquisitions Intellectual Property Data Protection, Security and Privacy ICT and Development

  3. Roadmap for today • Online Transactions • Blocking and tackling of transactions in digital goods and services • Shrinkwrap • Clickwrap • Browsewrap • Cross-border dynamics • [Other issues, if time permits • Taxation problems • E-signatures: UETA, E-Sign, EU Directives]

  4. Shrinkwrap • Software purchase in shrinkwrap • MicrosoftXP Office box reads: “You must accept the enclosed License Agreement before you can use this product. … If you do not accept the terms of the License Agreement, you should promptly return the product for a refund.”

  5. Shrinkwrap - II • MicrosoftXP Office • Privacy Policy: “Instructions and Microsoft’s privacy policy will be detailed to the user during launch of the product.”

  6. Shrinkwrap – III • Delayed presentation of terms • When is a contract formed? • On what grounds might it not be a binding contract? • “Take it or leave it” situation? • Brower v. Gateway 2000, Inc.

  7. Shrinkwrap – IV • Transaction in shrinkwrapped software. • Customer is in Amsterdam. • Seller is in the Bay Area. • Customer is bound by an arbitration agreement in California. • Customer can return the goods, but they only cost $9.99 USD.

  8. Clickwrap • Method by which assent is obtained: who offers, who accepts? Why and how does it matter? • When is a contract formed? • How many people actually read the agreements as they go through them? Does it matter if no one reads them? • Do we seek a contract regime that is more protective of consumers online in some fashion? • Impact of the unsympathetic plaintiffs? • Rudder v. Microsoft (Ontario, 1999)

  9. Browsewrap • Is it enough for the contract that you seek to bind your customer is linked from somewhere on the site? • Is a click-through strictly necessary to create a binding contract? • Specht v. Netscape Communications (2001)

  10. Unconscionability • PayPal v. Comb: • Is it a browsewrap case or an unconscionability case? • Does it differ from Brower v. Gateway? • Does this doctrine help with cross-border problems?

  11. Problem 13.5, Mann p. 214 • “Article 10Information to be provided[…] 3. Contract terms and general conditions provided to the recipient must be made available in a way that allows him to store and reproduce them.” -- EU E-Commerce Directive

  12. Conflict • Imagine a dispute in a transaction between the customer in Amsterdam and the company in the United States. • How do we determine the choice of law that shall apply? • If it’s in the contract, is that the end of the story? Does the European customer lose her consumer protections as her home country has defined them? (EU Distance Sale Directive, E-Commerce Directive). • If the contract is silent on this term, what do we do? • (Might consider the impact of CISG. How do we know if it’s “goods” that are involved in digital transactions? B2B v. B2C distinction.) • Taxation: Can the Bellas Hess rule work globally? • Grants safe harbor to sellers “whose only connection with customers in the taxing State is by common carrier or the US Mail”.

  13. Admin • Please sign up: • H2O (required) (Questions? E-mail: hroberts@cyber.law.harvard.edu) • Office Hours: • Thursdays, 1:00 – 3:00 p.m. (cbracy@cyber.law.harvard.edu to reserve time)

  14. Berkman Center for Internet & SocietyHarvard Law Schoolhttp://cyber.law.harvard.edu John Palfrey September 16, 2004

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