Re: Database Bill and Article 2B

From: Cem Kaner <kaner[_at_]kaner.com>
Date: Fri, 26 Jun 1998 00:00:22 -0500

On 6/24/98, Laurel Jamtgaard <laurelj[_at_]arl.org> wrote:
>
> [Be forewarned, this is an advanced question about POSSIBLE FUTURE law
> NOT existing law.]
>
> ASSUMPTIONS:
>
> A) Let's assume that H.R. 2652 (the database bill) passes with its
> current language regarding preemption which states that the law of
> contract will not be considered an equivalent right. (This is not a
> statement in support of the Bill)
>
> AND
>
> B) Assume that Article 2B of the UCC has been passed by the states and
> that it validates shrinkwrap (nonnegotiated) mass-market licenses. (This
> is not a statement in support of 2B)
>
> THE HYPOTHETICAL:
> Assume that a CD-ROM database of raw data is purchased by a social
> scientist and it includes a "shrinkwrap" license with provisions
> requiring no copies and no extraction whatsoever. Now assume that ten
> years later the scientist extracts 500 of 50,000 data records and
> publishes them in a scientific journal article. The database provider
> brings both a breach of contract and a database infringement/misapprop.
> claim.
>
> QUESTIONS:
> 1) On the database claim, the scientist argues that the extraction was
> not significant, but the database provider points to the license to argue
> that the scientist had given up the right to assert that defense. What
> result?
>
> 2) On the breach of contract claim regarding the same behavior, I would
> think that the consumer scientist will lose hands-down because the license
> terms control under H.R. 2652's preemption provision. Is unconscionability
> her only defense?

On what basis would this scientist assert an unconscionability defense?

This appears to be a mass-market license and therefore there are (according to the 2B reporters' comments) procedural protections inherent in 2B, in that the customer can reject a license and get a refund for the product.

Given that the seller follows a statutorily prescribed procedure, which was (allegedly) developed to be a protection for the buyer, surely such a procedure cannot be procedurally unconscionable.

The analyses that I recall of unconscionability require that, for a finding of unconscionability, a contract have substantively unconscionable terms and have been arrive at in a procedurally unconscionable way.

This contract is not procedurally unconscionable.

Therefore this contract cannot be unconscionable.

Is there an error in this analysis?

---

Cem Kaner, J.D., Ph.D.				       Attorney at Law 
P.O. Box 1200           Santa Clara, CA 95052             408-244-7000

Author (with Falk & Nguyen) of TESTING COMPUTER SOFTWARE (2nd Ed, VNR)

This e-mail communication should not be interpreted as legal advice or a legal opinion. The transmission of this e-mail communication does not create an attorney-client relationship between me and you. Do not act or rely upon law-related information in this communication without seeking the advice of an attorney. Finally, nothing in this message should be interpreted as a "digital signature" or "electronic signature" that can create binding commercial transactions. Received on Fri Jun 26 1998 - 04:05:58 GMT