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11 Yale J.L. & Tech. 1 (2008-2009)

handle is hein.journals/yjolt11 and id is 1 raw text is: WARRANTIES AND DISCLAIMERS IN THE ELECTRONIC AGE Robert A. Hillman* & Ibrahim Barakat** 11 YALE J.L. & TECH. 1 (2009) ABSTRACT This article reports on software-licensor express warranty and disclaimer practices on the Internet. Our data show that virtually all of the websites and End User License Agreements (EULAs) we sampled include express warranties on the website and disclaimers of the warranties in the EULAs that may erase all or much of the quality protection. Next, the article reviews the reasons why consumers generally do not read their e-standardforms despite the prevalence of disclaimers and other adverse terms. We then argue that e- commerce exacerbates the problem of warranties and disclaimers and that lawmakers should address this issue. We contend that improved disclosure of disclaimers, including making them easily accessible on a website prior to any particular transaction and possibly even the subject ofapop-up window during a transaction, is the best of various imperfect solutions to the problem. Disclosure is inexpensive and, at minimum, creates the potential for more legitimate consumer assent to e-standardforms, including assent to disclaimers of warranty. Even if in the short term consumers do not read their forms, perhaps consumers will eventually learn of misleading warranties and disclaimers because the Internet creates communication possibilities and research tools unavailable to disgruntled purchasers in the paper world The prospect of the word getting out that a licensor does not intend to stand behind its promises and representations may be sufficient to curtail the practice of misleading warranties and disclaimers. * Edwin H. Woodruff Professor of Law, Cornell Law School. The author is Reporter, Principles of the Law of Software Contracts, American Law Institute. All ideas expressed herein are the authors' and not those of the American Law Institute. We thank Mark Grube for able research assistance and the faculty of Boston University Law School for very helpful comments at a workshop presentation. **Associate, White and Case, L.L.P.; J.D. 2008, Cornell Law School.

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