Re: Magnuson-Moss

On Wed, 31 May 2000, Mike Phillips <mfslaw[_at_]mailandnews.com> wrote:
>
> Has anyone here seen Magnuson-Moss raised in a software matter?

Mike,

I know of no cases in which Mag-Moss has been discussed by a court, though that does not mean that it has never been raised.

Mag-Moss occasionally was interjected into UCITA/UCC 2B Drafting Committee discussions and one strongly put in oral and written statements by Professors Jean Braucher (U AZ) and Peter Linzer (U Houston) at the May 1998 ALI Annual Meeting. Also by Professor Braucher at the July 1999 NCCUSL Annual Meeting. Possibly raised in written comments filed with NCCUSL by state AGS and FTC Staff. The main Braucher-Linzer point was that ALI/NCCUSL support for calling a contract a license rather than sale had myriad, unconsidered effects beyond state legislation of the license label in service of software and information publisher use of contract law and labels to circumvent the first sale doctrine.

It is a point that first interested me enough to explore it in a short article in 1984 -- Computer Products and the Federal Warranty Act, 1 Computer Lawyer #8, p. 13 (1984) -- and which I occasionally still open for class discussion.

Currently, the FTC is making clear that it interprets FTC Trade Regulation Rule and other regulatory provisions that require a writing, signature, notice, etc to require the electronic equivalent in the Internet, e-commerce environment. With Mag-Moss, it is the statute -- not just FTC's implementing TRRules -- that use the word "sale". But, FTC does have rulemaking authority under the Act. Hmmm ....

David Rice

David A. Rice
Professor of Law
Roger Williams University School of Law
Ten Metacom AVenue
Bristol, RI 02809
PH (401) 254-4623
FAX (401) 254-4640
drice[_at_]world.std.com