Saturday 8h30 [Video]

Moderator: Michael Geist

Speakers:

• Peggy Radin, Property and Contract in the Digital Environment
• Vincent Gautrais, The Colour of Electronic Consent

PR: Regulation by contract, regulation by machines

• 1. legal and policy discourse

  Three streams of legal culture in confluence:

  • Propertization policy: more isn’t better. Too much is as bad as having too little.
    Shouldn’t assume legislative rules are in the common benefit and appropriate
  • competition policy: there is a barrier to market in order to lover barrier to market
  • Free speech: rethoric: commodified content that when propertized… […]

• 2. Court’s ingenious methods to get around the debate.

  Database protection: what is the anticompetitive branch » ebay, verio: invasion of hard drive, and harm and trespass. removing information that you don’t want your competition to get. Using state tord law to construct a database protection doctrine.

  Using contract to extend copyright:
  ProCD: 7th circuit. Not the law outside 7th circuit.
  Clickwrap/browserwrap.
  Which parts of the copyright regime are « default » and waivable. and which are inalienable? Should we impose mandatory rules/inalienable rules?

  We have to consider if treating the property regime as a set of default rule is itself a default rule and if society should consider changing that default rule.

  In a chicago perspective: Blanket non waivability for certain category could be less costly to judicial review of case by case basic. Mandatory arbitration for example.

• 3 cat for attention:
  • 1. waiving legal enforcement
  • 2. human rights
  • 3. rights that are politically weak (most likely to be undercut by interest groups and not protected similarly: e.g. fair use rights)

  The machine control is like an injunction. There is no choice to infringe and then ask for court review. Irreparable harm to recipied will be without recourse.

  DRM will make even non waivable rights irrelevant.

  Plea for limitation on such systems.

VG: my notes here are terrible again…

Ecommerce and contract law are a nascent field of law. There are new laws and new concepts to discover.

Technological neutrality is an unattainable target.

There are precedents in legislative redaction in order to adapt to techonology.
e.g. in the Quebec law, there are many neologisms, new concepts. It’s a law for engineers.

New economy contrats are often illegal. Old contract principles should still apply to electronic environments.

E-consent and legibility:

• The criterias to judge informed consent should be adapted:
  Legibility is different on paper and on screen.
  The relation between lenght of contract and speed of contractual process is disproportionate.

• Ethan Katsh: paper contract is an act. Electronic contract is a process.

E-consent and demonstration of will.

• Different means of expressing consent, both in the physical and digital world.

  Vincent is preaching to the choir.

• The click should be explicit and clearly significant.

In conclusion: the contract should be more formal to compensate the loss of the materiality of paper.
It appropriate to draft standard contracts to be drafted and approved.

The consumer, the weakest party, shoud be protected. The practice of manifesting consent in ecommerce is still problematic. We need to care about the consumer to enhance consumer confidence.

Both participants expressed concern with consumer choice and freedom of contracting.