Saturday, August 06, 2005

Ecommerce Subcommittee Meeting

The Ecommerce Subcommittee meeting ran at breakneck pace as we tried to cover the substance-packed agenda in the one-hour time allotment. Luckily, no other group was scheduled for the conference room so we could continue for an extra half-hour.

The meeting opened with the announcement that Juliet Moringiello is stepping down as Co-Chair, having reached the end of her three-year term. In her new role as Co-Chair of the Programs and Publications Subcommittee, the entire Cyberspace Committee will reap the benefits of her leadership talents and enthusiasm. Chris Kunz will be the new Co-Chair of the Ecommerce Subcommittee. Chris has been the driving force behind the impressive body of work on "click wrap" and "browse wrap" agreements produced by the Working Group on Econtracting Practices during her tenure as its Co-Chair. The timing is especially good for Chris to shift into the Ecommerce Subcommittee because of her interest in the Model Trading Partner Agreement and the Subcommittee's newest project, the Model Electronic Transaction Routing Services Agreement.

The meeting proceeded with a round-up of the Subcommittee's on-going projects. We were fortunate that Co-Chairs of all five Working Groups were in attendance to present status reports.

  • Linda Rusch summarized the progress that the Working Group on Transferable Records has been making on their attempt to give practical direction on how to establish "control" over electronic chattel paper.
  • Kathy Porter explained the Working Group on Electronic Contracting Practices' upcoming article on modification of standard form electronic contracts. Their next project will be a comprehensive review of the recently-published model website in anticipation of version 2.
  • Ben Beard reported on the annotations to Model Trading Partner Agreement, proposing that the Agreement be harmonized with the Model Electronic Transactions Routing Services Agreement, and that the two be published together.
  • Don Clifford discussed the revisions that the Consumer Protection Working Group is making to the ABA-sponsored website for consumers, www.safeshopping.org, which still contains content from its 1999 launch.
  • Jon Rubens brought us up-to-date on www.safe.selling.org, a proposed ABA-sponsored website for new Internet entrepreneurs .

Elaine Ziff made a presentation on two ecommerce decisions which were handed down in the past year. The first was Cairo v. Crossmedia Services, wherein the N.D. California upheld a choice of forum clause contained in terms and conditions posted on a site, despite the fact that the action meant to indicate assent, i.e., using the site, was undertaken by a robot which was not programmed to read the terms and conditions. The second case was Batesville Casket v. Funeral Depot, wherein in the S.D. Indianapolis suggested that the general rule that a website can link to another without liability for copyright infringements on the linked site does not necessarily apply where the linking site controls the content of the linked site.


The remainder of the meeting was dedicated to discussing the Model Electronic Transactions Routing Services Agreement. Phillip Schmandt and Chris Kunz led the group through their list of key conceptual questions, including, what is the difference between data and content, and what intellectual property, if any, will be created in the parties' relationship and who should own it? Between now and the Winter Working Meeting, a series of conference calls will be scheduled to go over the Model Electronic Transaction Routing Services Agreement in greater detail and focus on the actual language of the Agreement. If you would like to participate, please let Phillip or Chris know at pschmandt@mcginnislaw.com and ckunz@wmitchell.com.


Elaine Ziff, Co-Chair, Electronic Commerce Subcommittee