Re: Shrinkwrap contract on books (fwd)

["Bruce E. Matter" <bruce@legalmatter.com>]

I have not read the article, nor have I seen the "shrinkwrap" contract
being discussed.  However, if the "books" are printed on paper, it seems
that it would be a real stretch to claim that the sale is governed by
UCITA.

Here are a few Maryland Code section that may be of interest.

MD Code Section 22-102(a)(10) states "'Computer information' means
information in electronic form which is obtained from or through the use
of a computer or which is in a form capable of being processed by a
computer.  The term includes a copy of the information and any
documentation or packaging associated with the copy."

MD Code Section 22-102(a)(11) states "'Computer information transaction'
means an agreement or the performance of it to create, modify, transfer,
or license computer information or informational rights in computer
information. ..."

UCITA applies to "computer information transactions."  MD Code 22-103(a)

UCITA Section 103 deals with scope and exclusion issues.  I looked at the
Model Act's Official Comments on Section 103, and particularly paragraph
3, titled "Transactions Outside the Act."  It states:

"The scope of this Act is limited by the affirmative definitions of
'computer information' and 'computer information transaction,' which
exclude print and various other forms of information distribution ....  
As a result, the Act leaves unaffected all transactions in the traditional
core businesses of non-digital information industries.  Whether a
magazine, book or newspaper publisher can contractually limit or expand
rights of use of information by purchasers of copies and what contract
liability arises for print works is outside this Act ...." ...

"This Act does not apply to 'information,' but to contracts and agreements
regarding computer information."  (UCITA, Last Revision or Amendments
Completed Year 2001, Copyright 2001 by NCCUSL.  FYI, this version may not
be the most current at this time, but it was the most conveniently
available to me at this time.)

I sat through several NCCUSL drafting meeting several years ago when
traditional book publisher first began to participate in these meetings.  
This issue was not overlooked.

Of course, even if UCITA does not apply, that does not mean a publisher
cannot try to circumvent the first sale doctrine by shrinkwrapping a
license inside a book printed on paper.  I must say, having represented
both traditional print-on-paper and e-publishing interests for most of my
career, it will be interesting to see what happens next -- if anything.

Now, the disclaimer: None of the foregoing should be considered legal
advise for any reason.  Anyone considering whether UCITA may or may not
apply to any given set of facts should seek professional advice from a
licensed attorney.

Bruce

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