Title: Cyberlaw and the Global Economy Class 2'1: Online Transactions Harvard Law School Fall, 2004
1Cyberlaw and the Global EconomyClass 2.1
Online TransactionsHarvard Law SchoolFall,
2004
John Palfrey September 16, 2004
2Cyberlaw 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
3Roadmap 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
4Shrinkwrap
- 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.
5Shrinkwrap - II
- MicrosoftXP Office
- Privacy Policy
- Instructions and Microsofts privacy policy
will be detailed to the user during launch of the
product.
6Shrinkwrap 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.
7Shrinkwrap 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.
8Clickwrap
- 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)
9Browsewrap
- 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)
10Unconscionability
- 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?
11Problem 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
12Conflict
- 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 its 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 its 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.
13Admin
- Please sign up
- H2O (required)
- (Questions? E-mail hroberts_at_cyber.law.harvard.ed
u) - Office Hours
- Thursdays, 100 300 p.m.
- (cbracy_at_cyber.law.harvard.edu to reserve time)
14Berkman Center for Internet SocietyHarvard Law
Schoolhttp//cyber.law.harvard.edu
John Palfrey September 16, 2004