Survey of the Law of Cyberspace: introduction

In this year’s Survey of the Law of Cyberspace, we continue our coverage of developments in the law driven by technological change. In our first article, Roland Trope and Greg E. Upchurch explore the application of an old patent doctrine–staple of commerce–to the lawsuits filed against the creators or operators of “peer-to-peer” file sharing software. Their article, “Staple Article”: In Defense of Betamax and Its Progeny, (1) explores the challenges of applying age old principles to the latest technological developments. The cases discussed in the article also demonstrate how software developers change their products in response to court decisions and then rapidly distribute new software via the Internet. Due to the rapid rate of innovation in the area of peer-to-peer software, the legal issues discussed in this article are far from settled

Despite the fact that at least forty-eight states have enacted the Uniform Electronic Transactions Act (UETA), (2) and Congress has passed the Electronic Signatures in Global and National Commerce Act (E-SIGN), (3) financial service companies have been slow to apply these laws in the area of consumer transactions. An article in last year’s Survey (4) explored one of the hurdles to such adoption–the lack of an industry standard to deal with transferable records, (5) a new creature of UETA and E-SIGN. In this year’s Survey, Jean Braucher provides an overview of another key hurdle–the lack of certainty about the application of consumer disclosure laws to electronic transactions. (6) While few, if any, doubt the panoply of disclosure laws apply to electronic transactions, the move from paper to bits poses several practical challenges. In her article, Ms. Braucher explains how UETA and ESIGN address some of these issues, and she lays out a suggested strategy for counsel to tackle the challenges.

As 2005 begins, the Cyberspace Law Committee of the Business Law Section will continue to wrestle with the exciting challenges posed by continued technological change. These challenges include such wide-ranging issues as the increasing adoption of technology to place Internet phone calls (Voice over Internet Protocol), the ongoing jurisdictional battles that Internet-based commerce creates, and the new privacy questions raised by the use of radio frequency identification chips to track goods and, perhaps inadvertently, the people who buy them. These and other developments require us to continually reexamine the law and occasionally make changes to it. Next year, the Cyberspace Law Committee will publish another end-of-year survey of the developments in the law and provide you with practical guidance for dealing with the changes. To learn more about our committee, visit our website at the ABA, http://www.abanet.org/buslaw.

(1.) 60 BUS. LAW. 417 (2004).

(2.) UNIF. ELEC. TRANSACTIONS ACT [subsection] 1-21, 7A pt. 1 U.L.A. 211-299 (2002). Uniform Electronic Transaction Act Official Text was approved and recommended by the National Conference of Commissioners on Uniform State Laws in July 1999.

(3.) E-SIGN, 15 U.S.C. [subsection] 7001-7031 (2000).

(4.) The ABA Cyberspace Committee Working Group on Transferable Records, Emulating Documentary Tokens in an Electronic Environment: Practical Models for Control and Priority of Interests in Transferable Records and Electronic Chattel Paper, 59 BUS. LAW. 379 (2003).

(5.) See UETA, [section] 16(A), 7A pt. 1 U.L.A. 279

(6.) Jean Braucher, E-Disclosure: A Short Guide to Going Paperless in Consumer Financial Services, 60 BUS. LAW. 397 (2004).

Michael J. McGuire, Michael J. McGuire is a Managing Director and the Chief Counsel for Information Technology and eCommerce at GMAC Residential Funding Corporation in Minneapolis, Minnesota. Mr. McGuire is a Co-Chair of the Subcommittee on Programs and Publications for the Cyberspace Law Committee of the ABA Section of Business Law.