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III.UCITA and Clickwrap licenses
A. The background of UCITA
As mentioned above, someone think that UCC can not govern the new issues arise from the rapid development of technology. Under this circumstance, the National Conference of Commissioners on Uniform State Laws (NCCUSL), in conjunction with the American Law Institute (ALI), began work on an addition to the Uniform Commercial Code (UCC), which is known as Article 2B. During the drafting process, however, Article 2B came under heavy criticism from consumer groups, librarians, industries, etc. Failed to add Article 2B to UCC, NCCUSL changed the name of Article 2B to the Uniform Computer Information Transactions Act (UCITA). Now, Virginia and Maryland have adopted it.
B. Provisions of UCITA on Clickwrap licenses
NCCUSL drafted the UCITA to govern transactions dealing with computer information and goods. Section 5 of UCITA addressed the enforceability of shrinkwrap and clickwrap licenses. Section59.1-501.12 (a) provides that a term or recorder is valid if the person has an opportunity to review it or with knowledge of it. In Section59.1-501.12 (e), UCITA determines that a person "manifests assent" to a record or a term only if he has had "an opportunity to review" the term in advance, or at least an opportunity to return the software for a full refund after reviewing it.§ 59.1-502.8. (1) provides the condition when the terms of standard form is valid. § 59.1-502.8. (2) further provides the enforceability of a term even if the person has no opportunity to review it after beginning performance. The provision of§ 59.1-502.9 is Mass-market license, which include clickwrap and shrinkwrap licenses.In this section, the licensee is entitled to a return the license under certain condition. § 59.1-501.5(a), (b) and (c) indicate the relation to federal law; fundamental public policy andtransactions subject to other state law. Any provision, which conflict with federal law, public policy or a consumer protection statute, is unenforceable.
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