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84 Tul. L. Rev. 1557 (2009-2010)

handle is hein.journals/tulr84 and id is 1577 raw text is: The Principles of the Law of Software Contracts: At Odds with Copyright, Consumer, and European Law? Hannibal Travis* This Article will describe the drafling history of the Principles of the Law of Software Contracts, with particular attention to the extent of consumer and public interest group representation in the process. The drafi'ng process, I will argue, di not take adequate stock of problems identified in the late 1990s with proposed Article 2B of the Uniform Commercial Code, and then the Uniform Computer Information Transactions Act. Peisistent problems include provisions encouraging terms that violate public policy, that constitute copyright or patent misuse by attempting to prohibit fair use or withdraw material from the public domain, or that are not properly disclosed before the purchase. The difference between the present situation and the 1990s, however, is that European Union (EL9 directives on the subject of consumer protection and electronic commerce are ofmuch greater importance today, particularly given the explosion in e-commere between the United States and Europe. This Article will analyze whether the Principles do enough to protect the interests of consumers and the public in four key areas: (1) consistency with US federal and state statutory and common law, (2) clear and conspicuous disclosure of all relevant terms and conditions prior to the sale, (3) regulation and prevention of one-sided and unconscionable contract terms, and (4) consistency with EU and domestic European law The Principles and the comments thereto appear to sanction conduct that is in tension with the federal CopyWght and Patent Acts, the common law of several US states, and the EU. directives on Unfair Terms in Consumer Contracts (1993) and Protection of Consumers in Respect of Distance Contracts (1997). The Principles seem to be an imperfect attempt to unify the law of soliware contracts, codify best practices, and develop the law in a desirable direction. Finally, the Article will discuss when itis appropriate to hanmonize US and EU law and public policy I. THE TALES THE PRINCIPLES TELL .............................................. 1558 II. THE DRAFTING HISTORY OF THE PRINCIPLES ............................ 1561 III. PROTECTING FACTS FROM COPYING: FEDERAL COPYRIGHT PREEMPTION AND THE PRINCIPLES ........................ 1567 * © 2010 Hannibal Travis. Hannibal Travis, Associate Professor of Law, Associate Dean for Information Resources, and Interim Director of the Law Library, Florida International University College of Law. The author thanks Professor Keith Rowley for inviting him to participate in this symposium on the Principles of the Law of Software Contracts. He also thanks Professor Kerri Stone for her comments on a previous draft, then- Dean of the FIU College of Law Leonard Strickman for steadfast and generous support for faculty research as this Article was being conceived, and the editors of the Tulane Law Review who worked to make this Article presentable in a very short time, particularly Symposium Editor Kristen Schlemmer and Senior Managing Editor Kelsey Meeks Duncan. 1557

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