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The United States Constitution limits the power of the national legislature, but also provides that laws properly adopted by the national legislature override or "preempt" inconsistent state laws. The federal courts have interpreted this principle to invalidate, not only state laws that are clearly inconsistent with valid federal statutes, but also state laws that undermine the spirit or purposes of valid federal statutes. The result is that the scope of this principle of federal "preemption" is somewhat vague. Some federal statutes, including the Copyright Statute, try to reduce that vagueness by specifying the kinds of state laws they preempt, but such provisions do not altogether eliminate the uncertainty.

In this murky environment, the critics of click-wrap licenses argued that using state contract law to enforce them should be deemed preempted by federal Copyright law. The primary reason was that click-wrap licenses typically deprived consumers of many crucial privileges under copyright law and therefore upset the delicate balance balance between the rights of copyright-holders and the exceptions and limitations that benefit users -- a balance that, as we have seen, is crucial to the copyright system.

At a minimum, the critics argued, the issue was sufficiently complex that the federal courts would struggle for years to determine the extent to which the preemption principle applied in this context, leaving the enforceability of the licenses unclear and undermining the overall aspiration of the UCC to secure nationwide uniformity in contract law.

Finally, academic critics such as David Nimmer argued that, if mass-market click-wrap licenses were validated by proposed revision of the UCC, software vendors could deprive consumers of choice and competition by using the same "take-it-or-leave-it" click-wrap licenses across the industry. Nimmer suggested that this would amount to "'private legislation' that serves to alter en masse the public's rights granted under the Copyright Act."

Economic arguments

Cem Kaner contended in public meetings and in published formal letters that the proposed modification of the UCC would shift the relationship between software companies and their customers. “Whether or not you agree with me, it’s important that you understand that the ground rules are about to change,” he wrote in a March 1996 magazine article.

Kaner acknowledged the legitimacy of the software companies’ concerns. If contract law were not altered to limit the companies' liability for the consequences of faulty products, the companies would be obliged to raise the prices of their products. All consumers would thus suffer to some degree. More precisely, consumers as a group would bear the cost of compensating the relatively few consumers who suffered economic injuries resulting from defects in software products.

However, Kaner argued, enabling the companies to use click-on licenses to avoid liability for defects would leave to even worse outcomes. The increased leverage for software sellers, he argued, would not motivate them to convert their savings into lower prices for their products. Rather, it would induce them to spend less money on testing their products for major problems or on fixing those problems before releasing their products onto the open market.

Questions & Answers

Is there any normative that regulates the use of silver nanoparticles?
Damian Reply
what king of growth are you checking .?
What fields keep nano created devices from performing or assimulating ? Magnetic fields ? Are do they assimilate ?
Stoney Reply
why we need to study biomolecules, molecular biology in nanotechnology?
Adin Reply
yes I'm doing my masters in nanotechnology, we are being studying all these domains as well..
what school?
biomolecules are e building blocks of every organics and inorganic materials.
anyone know any internet site where one can find nanotechnology papers?
Damian Reply
sciencedirect big data base
Introduction about quantum dots in nanotechnology
Praveena Reply
what does nano mean?
Anassong Reply
nano basically means 10^(-9). nanometer is a unit to measure length.
do you think it's worthwhile in the long term to study the effects and possibilities of nanotechnology on viral treatment?
Damian Reply
absolutely yes
how to know photocatalytic properties of tio2 nanoparticles...what to do now
Akash Reply
it is a goid question and i want to know the answer as well
characteristics of micro business
for teaching engĺish at school how nano technology help us
Do somebody tell me a best nano engineering book for beginners?
s. Reply
there is no specific books for beginners but there is book called principle of nanotechnology
what is fullerene does it is used to make bukky balls
Devang Reply
are you nano engineer ?
fullerene is a bucky ball aka Carbon 60 molecule. It was name by the architect Fuller. He design the geodesic dome. it resembles a soccer ball.
what is the actual application of fullerenes nowadays?
That is a great question Damian. best way to answer that question is to Google it. there are hundreds of applications for buck minister fullerenes, from medical to aerospace. you can also find plenty of research papers that will give you great detail on the potential applications of fullerenes.
what is the Synthesis, properties,and applications of carbon nano chemistry
Abhijith Reply
Mostly, they use nano carbon for electronics and for materials to be strengthened.
is Bucky paper clear?
carbon nanotubes has various application in fuel cells membrane, current research on cancer drug,and in electronics MEMS and NEMS etc
so some one know about replacing silicon atom with phosphorous in semiconductors device?
s. Reply
Yeah, it is a pain to say the least. You basically have to heat the substarte up to around 1000 degrees celcius then pass phosphene gas over top of it, which is explosive and toxic by the way, under very low pressure.
Do you know which machine is used to that process?
how to fabricate graphene ink ?
for screen printed electrodes ?
What is lattice structure?
s. Reply
of graphene you mean?
or in general
in general
Graphene has a hexagonal structure
On having this app for quite a bit time, Haven't realised there's a chat room in it.
what is biological synthesis of nanoparticles
Sanket Reply
how did you get the value of 2000N.What calculations are needed to arrive at it
Smarajit Reply
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Source:  OpenStax, Copyright for librarians. OpenStax CNX. Jun 15, 2011 Download for free at http://cnx.org/content/col11329/1.2
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