330 likes | 626 Views
Electronic Agents under the Law. Reconciling the Promise of Agency Law Doctrine with Contract, Tort and Property Law Restrictions on Electronic Agent Deployment. Some Looming Issues . Business practice divergence Who should utilize electronic agents Content providers vs. users
E N D
Electronic Agents under the Law Reconciling the Promise of Agency Law Doctrine with Contract, Tort and Property Law Restrictions on Electronic Agent Deployment
Some Looming Issues • Business practice divergence • Who should utilize electronic agents • Content providers vs. users • Substantial transaction efficiency & marketing opportunity enhancement captured by e-agents • Use threatening to web content and service providers (disintermediation, “excessive” price visibility) • However, restrictions on consumer use of electronic agents have substantial anti-competitive impact
Laws Applicable to eAgency • Uniform Electronic Transactions Act (UETA) • Electronic Signatures in Global and National Commerce Act (E-SIGN) • Uniform Computer Information Transactions Act (UCITA) • Other laws potentially governing use of eAgents • Tort-tresspass, IP-infringement, Antitrust
Growing Significance of Electronic Agents • Relatively new legal concept • Legal recognition of electronic agents needed to legitimize emerging electronic commerce methods (manifestation of mutual assent) • Common implementation (user interface to process consumer transactions on business-to-consumer (B2C) electronic commerce websites) • Bots offer great potential for customer satisfaction & economic efficiency, are often denied website access • Seller implementation of electronic agents • Buyer implementation of electronic agents
Bots vs. Search Engines • Bots • Bots serve as loyal agents for the benefit of the consumer user • focus their efforts much more closely on satisfying only user criteria • tendency towards personification - the essence of loyalty expected of a traditional human/human-directed agents • Search Engines • significant methodological flaws in the indexing, ranking and presentation of search results • search results are also intentionally skewed to rank some results more highly than would be produced by objective ranking metrics • Search engines perform much closer to the original, primitive conception of electronic agents as mere tools
Bots vs. Search Engines • Key difference between bots and search engines • Bots are more likely to produce results consistent with primarily addressing the consumer needs while search engines are more likely to produce results biased by their technical flaws & other sources of conflicts of interest
Traditional vs. eAgency Law • UETA envisions that the computer and information science communities will continue innovating to refine electronic agents • Laws foresee electronic agents may evolve away from “tools” • Roles such as negotiation, making judgments & value assessments
Traditional vs. eAgency Law • Eventually capable of implementing negotiation through the assessment of tradeoffs among various contract terms • Computer science & IST communities are pushing the envelope of electronic agents to employ judgment using expert systems and artificial intelligence
Traditional vs. eAgency Law • Public Policy Context Electronic Agents • UCITA & UETA accept agency law • Each envisions automated, mechanical or computerized communications • Act as substitutes for human agents in: • Negotiation or conclusion of contracts • Principal is bound by acts of eAgents in same situations as if human agents used
Electronic Agent under UETA • Computer program, or electronic or other automated means • Used by a person to initiate an action or respond to electronic messages or performances • On the person’s behalf • Without review or action by an individual • May manifest assent to a record or term after an opportunity for review
Automated Transactions • Contracts formed without human intervention by one or both parties • Assent may occur after eAgent starts performance • Delivery of licensed information or • Making a payment due • Enabling review - communication must be in form that reasonably configured eAgent could be technically capable of using
Role of Humans vs. eAgents • eAgents are semiautonomous • Humans generally write & configure underlying software • Humans & firms are principles benefited by eAgent activities • eAgents may • Perform preliminary negotiations • Information delivery & discovery • Create contracts through mutual assent • Offer, acceptance, document processing • Performance of contracts • Deliver electronic performances, incl Payments • Document processing
Bots • Shopping bots scour web info on goods given human’s predetermined specifications • Can site limit information discovery? • Consumers approach “perfect info” • Auction or shopping sites consider listings are proprietary data • eBay v. Bidder’s Edge (N.D.Cal.2000) • Bots trespass w/ continually requests for listing updates • Do “terms & conditions” of website use prevent automated comparison shopping?
Why are ‘Bots Important? • ‘Bots Share Information Advantages Traditionally Held by Primary Aggregators with Secondary Aggregators for Shopping Benefit of Clients • ‘Bots Focus Search Engine Technology and Legal Rights on Databases • Impact Rights to Post and Aggregate Content
Why are ‘Bots Important? • Emerging Legal Issues Span Various Fields • Tort, Intellectual Property, License Assent & Restrictions, Consumer Protection, Antitrust, eAgency • Expect Significant Impact of ‘Bots & Regulation on: • Content Aggregation, P2P Technologies & Markets, Monitoring Website Infringement, Automated Bargaining
Economic Impact of Bots • Perfect Competition Model & Efficient Markets Presume Perfect Information • ‘Bots Rely on Network Effects to Reduce Search Costs, Increase Comparisons, Approach Perfect Info • ‘Bots Facilitate “Bidding Profits to Zero” • But, shopper’s price-tunnel vision arguably ignores relevance of service • Information Asymmetries Undermine Market Clearance, cause Adverse Selection
What are Sustainable Business Model(s) for Bots? • Bot Innovation Unsustainable w/o Effective Revenue Model • Innovation constantly needed to refine search, retrieval, analysis & retain unfettered data access For Free then Fee once Audience is Captivated • Online Infomediary or Personal Shopping Asst. • Fee for Service • Fixed/Variable per transaction, metered as what?!? • Micro-Payments would permit initial growth • Subscription Model • Eyeballs & Ad referrals enable mass personalization • Slotting Preferences • PII Profiling for Resale
‘Bots are Subset of Search Engine Architecture • ‘Bots have Many Operations & Legal Issues Similar to Search Engines • EX: IP, Affiliation, Linking, Framing, Caching • Shopping Bot a/k/a/ Crawler, Spider • Autonomous Software Performs Search, Selection, Arrangement, Analysis, Linking • Low Cost, Operates in Representative Role, Functionality Enabled by Network Effects
Disincentives to Tolerate Uncontrolled Bot Activity • Bots Could “Bid Profits to Zero” • Historical Reluctance to Revealing Proprietary Information • Game Theory: Bargaining Strength Compromised • Direct Comparisons: Sales Lost to Competitors • Eyeballs Diverted from Preferred Order of Impressions • Bots Maliciously Invade Server Space • Could be indistinguishable from hack/attacker
Three Models of ‘Bot Interaction for Content Sites • Benign Tolerance • Broaden exposure, increase traffic & sales • Cooperative • Negotiate linking agreements & ‘Bot affiliation, slotting fees – these approach form as distribution agreements • Hostile Opposition • Active technical & legal maneuvers to prevent ‘Bot probes, internalize value of postings, suppress non-competitive terms
Are Bots Cyber-Trespassers? • Trespass to Chattels, Land or Sui Generis • CompuServe v. Cyber Promotions, 962 F.Supp.1015 (S.D.Oh.1997) (spam is trespass) • Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559 (1996) (misappropriation of long distance service) • eBay v. Bidder’s Edge, 100 F.Supp.2d 1058 (N.D.Ca.2000) (PII, trespass, site congestion) • Register.com v. Verio, 126 F.Supp.2d 238 (SDNY 2000) (enjoined extraction of WHOIS info from dom. name registrar, congestion) • Ticketmaster v. Tickets.com, (C.D.Cal.3.27.00) • Computer Fraud & Abuse Act, 18 USC §1030 • Intel v. Hamidi (Cal.S.Ct.2003) (no trespass to chattel unless email harms target computer server)
Do Bots Infringe IP? • Kelly v. Arriba Soft, 2002 US App.LEXIS 1786 (9th Cir.2002) (Thumbnails - fair use) • BT v. Prodigy, (UK patent on hyperlink) • A&M v. Napster, (contributory infringement, central database) • NBA v. Motorola, 105 F.3d 841 (2d Cir. 1997) (state misappropriation narrowed) • DMCA anti-circumvention • Other Linking, Framing & Caching Restraints • Sui Generis Database Protections (e.g., EU)
Antitrust & Consumer Protection • Monopolization of Essential Facility • Refusal to Deal – bar info access to ‘Bots • Preventing Price Comparison is Anticompetitive, Erects Barriers to Entry • Search Results Biased by Slotting Fees • Unfair & deceptive trade practice in obfuscating ‘Bot’s bias • Non-Objective Search Results Anti-Competitive
eAgents under Agency Law • UETA, E-SIGN & UCITA Encourage Equivalence of Electronic Agents • Disclosure of Principles vs. Agents • Anonymizer conceals principal’s identity • Principal’s Rights/Needs to Use Agents • Third party’s Rights to Refuse to Deal w/ Particular Agents or Classes of Agents
Robot Exclusion Standards • Industry Convention (standard) as respect method to exclude search engines, bots & spiders from copying or indexing content • Defined & Tutorals: • http://www.robotstxt.org/wc/norobots.html • http://www.searchengineworld.com/robots/ • http://www.dwfaq.com/Tutorials/Miscellaneous/robot_txt.asp • Google’s index avoidance recommendation • http://www.google.com/webmasters/remove.html
Enforceable Contracts Require Mutual Assent • Mutual Assent Arises when: • Offer, acceptance, consideration, legal objective, S/F (writing vs. oral) • Website Terms & Conditions • Licenses (EULA) are contracts too! • Enforceability of shrink/click/browse wraps • Nature of terms included (e.g., adhesion, waive fundamental rights) • Robot exclusion?
e-Contracting Departures from Traditional Practice • Mutual Assent can be Implied from the parties’ conduct • Implication strongest when regularly & objectively discernable • EX: everybody expects to pay taxi fare • Implication weaker in other contexts • EX: Tickets (cruise, sporting event), claim checks (pkg., coatroom), open source (Linux)
e-Contracting Departures from Traditional Practice • The 4 Wraps: Shrink; Click; Box; Browse • Shrink-Wrap Software Agreements • Accept standardized terms or return to decline • Pro CD v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996) (shrink wrap license use restriction enforceable) • Increasingly enforceable because ubiquitous • UCITA mass-market licenses • Consumer must have opportunity to review & archive terms
e-Contracting Departures from Traditional Practice • Click-Wrap Agreements • Software licenses appear when installed • Specht v. Netscape • Online license terms accessible before download & installation of software or receipt of content • eAgents “work” for content provider • Terms in the Box • Retaining hardware purchase implies acceptance of software license • Gateway 2000
Browse Wrap/Click Free • Mutual Assent implied from mere browsing • Everyone surfer knows that there are terms & conditions for website use • BUT, stealth terms seldom equivalent to terms negotiated by market equals, risks unknown • Cause surprise, unconscionable, adhesion, take-it-or-leave-it • EX: Robot Exclusion Standard?!?