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No Bargaining Power And The Internet Boom Of The 1980 ' S

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Since the software and Internet boom of the 1980’s, there has been the existence of click-on, (aka click-through, click-on license, or click-wrap agreement), End User License Agreements (EULA) and Terms of Service (TOS) contracts. These contracts require the user to give assent to “lease” the program or website by clicking on an” I agree” or “I disagree” button which either confirms that the user has read the EULA or TOS and is giving assent to those terms, or is rejecting those terms and therefore is making the decision not to use the product. They are found in every sort of medium from web-based programs like Facebook and Instagram to installed software such as Adobe and McAfee. The terms are usually implied warranties, limit…show more content…
Luckily for “Big Software”, the law doesn’t require that the user read through all of the terms for the contract to be binding. Currently the law, namely the Uniform Commercial Code (UCC), has no warranty protections for the consumer who leases these programs, although courts have tried to use it to interpret individual software warranty, privacy, and breach of contract cases. The poorly received and executed Uniform Computer Information Transactions Act (UCITA) was designed based on Article 2 of the UCC but has only been adopted by Maryland and Virginia. While UCITA has been extensively protested by consumers, the legal and intellectual property law communities state their objections that the Act upholds the root of the problem, overly aggressive contract terms (Kaner). The authors of the UCC, National Conference of Commissioners on Uniform State Laws (NCCUSL), and the American Law Institute (ALI) need to draft viable regulations for both software companies and consumers that level the playing field. Another issue that arises for the end user is the fact that they are only freely using or purchasing a license, or right, to these online products in comparison to purchasing a tangible good at a store. When the NCCUSL revisited the UCC to make an amendment (Article 2B) to include regulations for software licenses, the ALI pulled out of the deal, and the
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