Re: Uniform Computer Information Transactions Act (UCITA)

From: David Rice <drice[_at_]world.std.com>
Date: Wed, 02 Jun 1999 12:42:56 -0400

On Tue, 01 Jun 1999, Ari Kahan <akahan[_at_]netcom.com> wrote:
>
> On 5/31/99, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
> >
> > On Thu, 27 May 1999, Vance R. Koven <vrkoven[_at_]world.std.com> wrote:
> > >
> > > As a practical matter, does that make it more or less likely to be
> > > enacted by enough states to make it normative?
> >
> > (3) I think the most likely result is that UCITA will be enacted in some
> > states (say, Washington) but not others (say, California). What happens
> > then is anyone's guess.
>
> Isn't one possibility that as soon as it passes in one state (say,
> Washington), software companies from other states (say, California)
> would threaten to leave California for Washington, thereby putting
> pressure on California to pass it as well?

UCITA is written to avoid the race-to-the-bottom (or anywhere else) problem. It expressly provides that a contract may include a term that specifies what law governs the transaction. Discussions and Reporter's Notes indicate that the intention is to provide a contractual means to avoid application of generally applicable, non-contractual choice of law rules. The rationale is, of course, that the net is everywhere; a party and its server may be in different states, packets travel every whichway from origin to destination, and publisher/licensors can never know for every transaction where a party or its server resides, or whether the party clicked th wrap while at home, office, airport, on-the-road hotel, etc. -- and publisher/licensors need reasonable certainty (or, alternatively, will have to charge licensees substantially higher prices if they cannot have it).

So, the argument that you suggest, Ari, is likely to be one that really is being made in a different context for a different purposes. E.g., we will move to State X if you do not give us [check one or more items] (___ investment tax credit ___ new job creation tax credit ___ other public support) because the refusal to do so is one more indication that you, State Y, take us for granted or don't really care enough about our firm/industry. [Here, failure to enact UCITA is one of the facts that are alleged to show that State Y really doesn't care enough].

---

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 Received on Wed Jun 02 1999 - 16:42:13 GMT