Copyright (c) 2009 All rights reserved. http://works.bepress.com/richard_warner Recent documents in Richard Warner en-us Thu, 29 Oct 2009 23:21:09 PDT 3600 http://works.bepress.com/richard_warner/53 http://works.bepress.com/richard_warner/53 Wed, 28 Oct 2009 15:07:51 PDT Richard Warner Ethics http://works.bepress.com/richard_warner/52 http://works.bepress.com/richard_warner/52 Wed, 02 Sep 2009 09:17:52 PDT Richard Warner Law and Technology http://works.bepress.com/richard_warner/51 http://works.bepress.com/richard_warner/51 Fri, 17 Apr 2009 10:51:47 PDT Richard Warner Law and Technology http://works.bepress.com/richard_warner/50 http://works.bepress.com/richard_warner/50 Sun, 08 Mar 2009 17:45:45 PDT Informational privacy consists in the ability to control one's personal information. Advances in information processing technology have reduced informational privacy by giving others the power to determine when our personal information is collected, and how it used and distributed. Privacy advocates the sound alarm--in regard to both the governmental and private sectors. This Article focuses entirely on the private sector. Privacy advocates have been remarkably unconvincing when arguing that purely private sector reductions in informational privacy pose a serious danger. Their arguments typically consist of examples in which the loss of control over personal information causes harms that--other things being equal--virtually anyone would find unacceptable. "Other things" are rarely "equal." Reducing informational privacy often advances other important goals, and many readily surrender privacy for even relatively minor benefits. The privacy advocates insist we are wrong. They see us as trapped in a "balancing wrongly" crisis in which we systematically undervalue the informational privacy we willingly surrender. They may well be correct; but this Article does not pursue that possibility. The Article claims that there is another privacy crisis, one that has gone largely unnoticed. Technological advances have not only created critical balancing questions; they have also rendered largely useless the scales on which we balance the competing interests. We have lost the customary balancing mechanism at the very time we most need it. This loss is the other privacy crisis. The lost balancing mechanism consists of informational norms--norms that constrain the collection use, and distribution of personal information. The norm-created constraints not only balance competing interests; they also, by virtue of creating that balance, constitute an essential means to achieving a variety of important ends. The technological increase in our ability to process information has undermined the norm-created balance and thereby deprived us of that indispensible means. The solution is to create new informational norms. Legal regulation will not be particularly effective in this regard; however, the very information processing technology that undermined traditional informational norms may provide the means to creating new norms. Richard Warner Computer Law Law and Technology http://works.bepress.com/richard_warner/49 http://works.bepress.com/richard_warner/49 Wed, 03 Sep 2008 10:08:06 PDT Richard Warner Legal Education http://works.bepress.com/richard_warner/48 http://works.bepress.com/richard_warner/48 Thu, 03 Apr 2008 09:50:39 PDT Is the Internet turning contract law on its head? Many commentators contend it is. Precisely this issue arises in current controversies over end user license agreements (EULAs) and Terms of Use agreements (TOUs, the agreements governing our use of web sites). Commentators complain that, in both cases, the formation process unduly restricts buyers' freedom; and, that sellers and web site owners exploit the process to impose terms that deprive consumers of important intellectual property and privacy rights. The courts ignore the criticisms and routinely enforce EULAs and TOUs. There is truth on both sides of this court/commentator divide. EULAs and TOUs are standard form contracts, and a standard contract formation process can guarantee acceptable terms and enhance freedom; however, in the case of EULAs and TOUs, the process is currently defective in ways that result in unfair terms that reduce freedom. The cornerstone of the analysis is the claim that, when certain ideal conditions are fulfilled, standard form contracting is a freedom-enhancing process yielding acceptable terms. To characterize the ideal formation process, the analysis combines ideas from both the relational theory of contracts and law and economics. Relational theory provides the picture of contracting as a norm-governed activity while an adaptation of a well-known law and economics argument to argue yields the conclusion that, in an ideal formation process, the profit-maximizing strategy for sellers and web site owners is to offer consumers norm-consistent contractual terms. I contend that norm-consistent terms are acceptable and freedom-enhancing. The theory applies equally to Internet and non-Internet contracting, and this shows that the Internet is not turning contract law on its head; however, the theory also reveals that Internet contracting poses serious, unmet challenges to contract law. The problem is that EULAs and TOUs contain terms not currently governed by appropriate norms. As a result, the EULA and TOU formation process departs from the ideal formation process in ways that result in unacceptable, freedom-reducing terms. In the case of EULAs the offending terms involve prohibitions on reverse engineering and transfers of software to third parties. It is likely that relevant norms will evolve relatively soon to govern such terms. In the case of TOUs, the offending terms concern the collection of information by businesses and web sites and implicate privacy concerns. It is unlikely that relevant norms will evolve in relatively soon in this case. How are appropriate norms to be identified or, where necessary, created? The analysis raises but does not answer this question. Richard Warner Contracts Intellectual Property Law Economics Computer Law http://works.bepress.com/richard_warner/47 http://works.bepress.com/richard_warner/47 Tue, 13 Mar 2007 11:13:23 PDT Richard Warner Law and Technology http://works.bepress.com/richard_warner/46 http://works.bepress.com/richard_warner/46 Tue, 13 Mar 2007 11:02:30 PDT Richard Warner Legal Education http://works.bepress.com/richard_warner/45 http://works.bepress.com/richard_warner/45 Tue, 13 Mar 2007 11:01:54 PDT Richard Warner Legal Education http://works.bepress.com/richard_warner/44 http://works.bepress.com/richard_warner/44 Tue, 13 Mar 2007 11:01:08 PDT Richard Warner Jurisprudence