UCITA in court and doing well
When the Uniform Computer Information Transactions Act (UCITA) was being debated nationally in the late 1990’s and early 2000’s, it became part of a wildly intense debate about the nature of contract law that ultimately led to the rejection of two misguided efforts to revise ancient UCC Article 2. UCITA barely survived vitriolic and often dishonest attacks. It was enacted in two commercially major states and the concepts it set out have become mainstream judicial analyses, referred to in a number of legal treatises.
In my opinion, the true test of a contract law statute lies in how little litigation it creates. Under that standard, UCITA has been a true success in Maryland and Virginia. Ten years after enactment, it is only now that a small trickle of cases under UCITA have begun to appear.
One of the false arguments brought by opponents against UCITA was that it tipped the scale too strongly in favor of vendors and online providers wanting to impose terms. The Court of Appeals in Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) refuted that claim, commenting the UCITA enacted contract formation rules consistent with common law, but placed them in a codified form. A similar observation was made by a neutral scholar, Bob Hillman. See Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L.Rev. 429, 491 (2002) (“[W]e contend that UCITA maintains the contextual, balanced approach to standard terms that can be found in the paper world.”).
So, the first time a court was asked in Virginia to apply UCITA to a contract formation issue, what happened? The court applied UCITA and reached the conclusion that the particular online provider did not do enough to create a contractual obligation with respect to users of its site.
The case was Cvent v. Eventbrite, 2010 WL 3732183 (ED Va. 2010). The case involved scraping of data from the Cvent site by Eventbrite. The data concerned venues for events. There were a number of claims, including a claim for violation of computer crime law. But also a claim for breach of contract. The court said:
The statute fits smoothly with the common law and the result underscores, once again, the basic premise that if a contract is desired, the process must be on that ensures that reasonable notice and reasonable opportunity for assent exist.