1 / 14

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,

nijole
Download Presentation

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

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  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

More Related