FALL 2004

Computer Law

Course No. 9200 711 001	MW 10:30 a.m. - 12:05 p.m.	Room W-214
Professor Jay Dratler, Jr.	Room 231D (IP Alcove)	(330) 972-7972	dratler@uakron.edu, dratler@neo.rr.com

Notes and Questions on First Reading of UETA

[Please work through the questions in points 2 through 11 below, preferably in groups, and make notes on the provisions, comments, and key words and phrases on which you base your answers.]

1. Comparing UETA and UCITA. Although both deal with computers and modern information systems, UETA (the "Uniform Electronic Transactions Act") and UCITA (the "Uniform Computer Information Transactions Act") are vastly different model statutes. UETA is a relatively simply statute with relatively modest goals. Its Section 2 contains sixteen definitions, and it runs only 47 pages in .pdf format, including its official comments.

In contrast, UCITA is an ambitious and highly complex statute, designed to cover a wide range of licensing transactions involving "computer information" and computer programs. Its Section 102 contains 66 new definitions, as well as twelve incorporated from the Uniform Commercial Code. Together with its official commentary, it runs over 255 pages in .pdf format. More important, UCITA has been highly controversial, in part because of its complexity, and in part because it has been perceived as reflecting the interests of vendors and producers more than users and consumers of computer information products. For an overview of the history and nature of the controversy, including the American Law Institute's decision to abandon what started as a joint project with the National Conference of Commissioners on Uniform State Law, see Brian D. McDonald, "The Uniform Computer Information Transactions Act," 16 Berkeley Tech. L.J. 461 (2001).

As a result of these differences in complexity and legal acceptance, the two model statutes have fared differently in the state legislatures. So far, only two states, Maryland and Virginia, have adopted UCITA. In contrast, 41 states had adopted UETA as of October 2002. (Ohio's version of UETA appears at Ohio Rev. Code Ann. §§ 1306.01 - 1306.23.) Thus, while UCITA may crop up in contracts in other states by virtue of choice-of-law provisions and agreements to "opt in" to UCITA's provisions, business lawyers practicing outside of Maryland and Virginia are much more likely to encounter UETA than UCITA.

2. Purpose of UETA. What is the main purpose of UETA as a whole? Is it to provide uniform rules for electronic contracting, including contract formation, remedies, warranties, etc.? Or is its purpose much narrower? What better reflects UETA's purpose: the official Comments or the language of the statute itself? which comments and/or which parts?

3. Scope of UETA. What is UETA's scope, i.e., to what does it apply? Does its coverage exclude any broad category of dealings, such as trusts and real-property transactions? Does it include transactions between businesses and consumers? What basic definition governs the scope of UETA's coverage? Is this definition broad or narrow? Does the statute's application depend upon the intent of parties to a deal? Does UETA apply retroactively to deals done before its was adopted in the relevant state?

4. Effect on UETA on substantive contract law. Does UETA change the substantive law of contracts? Does it determine invariably when electronic records create a binding contract? Does it generally create invariable rules or "default" rules, which apply in the absence of agreement to the contrary? If UETA does not provide rules of substantive contact law, then precisely what does it do? Does it validate automated transactions that are otherwise lawful under applicable substantive law?

5. Electronic signatures under UETA. Under UETA, what determines whether an electronic signature is valid? Does an electronic form provide any advantage in terms of validation? Under UETA, can a mouse click be a signature? Can an e-mail? Does the statute validate oral transactions? Do agreed security procedures provide any presumption of validity? In general, what determines whether there was an agreement to use electronic means?

6. Conditions on enforcement. Are there any general condition upon the enforcement of an electronic record? What if some bug in or unusual characteristic of a person's system prevents an electronic record from being stored? What if another law requires a message to be posted, displayed, sent, communicated, transmitted or formatted in a particular way? Does UETA overturn that other law?

7. Attribution under UETA. Does UETA prescribe a specific rule for attribution of electronic records? What determines whether a signature was the act of a particular person? Do UETA's rules for attribution alter existing law? Once an electronic record is attributed to a person, is the record automatically enforceable against that person, or do the usual legal excuses apply? Is a signature required for attribution of a record? Is a security procedure required? is it best? What determines the effect of an attribution? Does a statutory notarization requirement preclude use of electronic means to consummate a transaction?

8. Effect of change or error under UETA. Is a party to an electronic transaction bound despite unintended changes and errors? Can a business avoid a transaction by claiming an electronic error? What are the conditions for avoiding a transaction based upon an electronic error? If this "out" is not available, what law governs electronic error? Can the provisions for electronic error be varied by agreement? Does a person have to show that an error was caused by electronic mistake, such as a computer "glitch," in order to take advantage of this section? What law applies if an electronic agent makes an error? Does § 10(2) for electronic error provide an incentive for makers of electronic agents to build systems that minimize errors? Can an individual who receives software or text information in error avoid the transaction?

9. Record retention. Must records of transactions be retained in paper form? What are the requirements for record retention in electronic form? Can records fail to meet the statutory standard if their storage technology becomes obsolete? On the other hand, can paper records be destroyed once electronic counterparts have been prepared and are maintained with non-obsolete technology? Are transmission headers and such considered parts of electronic records which must be retained? Does the best evidence rule still require a paper "original"?

10. Automated transactions under UETA. Does UETA permit and validate automated transactions? Can a valid automated transaction involve two electronic agents, i.e., can it be totally automated? Can it involve an electronic agent and an individual? Which kinds of transactions are now more common? What law governs automated transactions? Does validation of electronic transactions violate the usual contract principle that intention much accompany assent in order to form a contract? Can electronic agent transactions satisfying signature requirements?

11. Sending and receiving electronic records. When is an electronic record sent? When is it received? Need an individual be aware of receipt in order for it to occur? Are these rules invariable? Do these rules determine an electronic record's legal effect? Do they provide for general broadcast messages? Does UETA determine the effect of a sender trying to "pull back" or retrieve a message? Can a recipient avoid receipt under UETA by leaving e-mail messages on the server? Can a person designate different addresses for different purposes? Can a person designate the place of sending or receipt unilaterally?

Back to Top