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Contracts are normally unenforceable absent an objective manifestation of mutual assent (i.e., offer and acceptance). Moreover, hornbooks typically note that an offer may only be accepted by the person or persons to whom it is made. The law has traditionally acknowledged that a “person” can be either a human being, corporation, partnership, association, labor organization, trustee, or court-appointed receiver. The law has been unwilling to enforce contracts where either the offeror or offeree is an animal, mineral or minor — since each presumably lacked contractual capacity. Prior to the decision in A&M Records, Inc. v. Napster, Inc., the term “bot” wasn’t even part of the legal lexicon; although the courts have referred to “software robots.” But that’s about to change thanks to the Uniform Computer Information Transactions Act (“UCITA”), which outlines rules governing the formation and enforceability of contracts entered into by “bots.” To date, the Napsterdecision is the only reported decision that even mentions the word “bot” — albeit, in ancillary fashion. See A&M Records, Inc. v. Napster, Inc., 2000 U.S. Dist. LEXIS 6243; No. C99-05183 MHP, 54 U.S.P.Q.2D (BNA) 1746 (N.D. Cal. 2000). BOTS 101 Bots (a/k/a search agents, intelligent agents, software robots, Webbots, or software agents) are ubiquitous on the Web today. A “bot” can be loosely defined as an autonomous software agent that performs repetitive tasks in accordance with its pre-programmed instructions. The word “bot,” an abbreviation for robot means, “forced labor” in Czechoslovakian. The best known categories of bots include, ShopBots, Knowbots, Mailbots, Chatterbots, and the dreaded Spambots. It is not an exaggeration to say that world economic growth would probably come to a crashing halt if bots were suddenly outlawed or entirely ceased to exist. Yahoo, Ebay, Priceline and millions of other Web sites are highly dependent on search agents, which neither weary from their toil, nor require six-figure salaries. The advent of modern day search bots can be traced back to at least the early 1960′s. In 1963, Fernando Corbato created a bot to automatically save mainframe computer files. However, most bot-historians give Joseph Weizenbaum credit for creating the first real bot in 1966, known as “Eliza.” Eliza was the world’s first chatterbot, and had the ability to carry on a conversation with humans to an extent previously unheard of. The first ‘intelligent agent,’ known as “Julia,” was designed in 1990 by Michael Mauldin. Julia was the original customer service bot, and was capable of providing a precise answer to specific user inquires. In 1993, Matthew Gray introduced the world’s first Webbot whose purpose was to keep a running tally of all the computer servers on the planet. Netizens can peruse a comprehensive list of nearly every currently available bot at either BotSpot (http://www.botspot.com) or BotKnowledge (http://www.botknowledge.com). Today’s programmers have the tools, knowledge and experience needed to finally incorporate artificial intelligence into autonomous agents. Enormous progress has been made in the design of customer support bots, known as “Vreps” (virtual representatives), by firms such as Artificial Life. “Luci” — one of Artificial Life’s Vreps — can both converse and interact with human beings to an extent which is arguably light years ahead of her Eliza ancestor. When Luci is asked about her parent company, Artificial Life, she responds with a relevant factual answer, and simultaneously pulls-up their latest corporate press release for the questioner’s convenience. If Luci is asked something unconventional, such as whether or not she is married, her response is, “No, I’m still free as the wind, although I do have a boyfriend.” That’s fairly impressive considering that she’s been programmed to offer product support. Aside from utilizing electronic agents for online customer support, the greatest potential lies in their ability to totally automate Web based transactions; particularly where computer information is involved. Intelligent bots will eventually make companies that offer Web based transactions and support more efficient. Since the advent of Electronic Data Interchange (EDI) 25 years ago, and the subsequent emergence of B2B exchanges, bots have greatly assisted trading partners in automating the contract formation process. Many now believe that EDI — which generates an inordinate amount of autofaxes — will soon be replaced by a new Web based services-trading marketplace that is based on something called “Electronic Business Extensible Markup Language” (ebXML). The ebXML project is a joint initiative of The United Nations (UN) and the Organization for the Advancement of Structured Information Standards (OASIS), and establishes a new technical standard for enterprises of any size to conduct business over the Internet. According to the Official ebXML Website (http://www.ebxml.org), “ebXML enables a global electronic marketplace where enterprises of any size and in any geographical location can meet and conduct business with each other through the exchange of XML-based messages.” If ebXML eventually replaces EDI, the combination of electronic agents and digital signatures may have a profound effect on reducing the need for human intervention in the contract negotiation and formation processes. AN INTRODUCTION TO THE UCITA The final version of the UCITA was approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in September 2000, subsequent to a decade-long drafting process and resulting in a 350 page document. To date, the UCITA has been adopted by both Virginia and Maryland, and has been introduced by the legislatures of Arizona, Maine, Illinois, New Hampshire, New Jersey, Oregon, Texas and the District of Columbia. The prefatory note states that the “UCITA is the first uniform contract law designed to deal specifically with the new information economy.” Its purpose, as a substantive contract law statute, is to facilitate the formation and enforceability of agreements related to the creation, modification, transfer, sale or license of computer information. Software development, database access, online support and video game download agreements are among the types of contracts covered under the UCITA. IMPORTANT UCITA DEFINITIONS The UCITA refers to bots as “Electronic Agents,” and defines them as,”computer program[s], or electronic or other automated means, used independently to initiate an action, or to respond to electronic messages or performances, on the person’s behalf without review or action by an individual at the time of the action or response to the message or performance.” Official Comment 23 of the Definitions Section further clarifies the definition of Electronic Agent by stating that,”[T]his term refers to an automated means for making or performing contracts. The agent must act independently in a manner relevant to creating or performing a contract.Mere use of a telephone or e-mail system is not use of an electronic agent. The automated system must have been selected, programmed or otherwise intentionally used for that purpose by the person that is bound by its operations.” It should be noted that the Uniform Electronic Transactions Act (UETA) — essentially a procedural statute, purposely drafted so as not to be incompatible with the UCITA — has a nearly identical definition of Electronic Agents. Another important definition deals with “Automated Transactions.” Official Comment 5 of the Definitions Section provides that,”[Automated Transactions] � refer[ ] to contracts formed automatically and which are effective even though one or both parties operates through an electronic agent instead of a human being (an individual).” One bifurcated definition found in the UCITA deals with the term “conspicuous.” With respect to contracts made between individuals, the NCCUSL opted to parallel the Uniform Commercial Code’s (UCC) definition of conspicuous (i.e., “a term � so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.”) However, with respect to bot-mediated transactions, Official Comment 12 of the Definitions Section specifies that, “[F]or an Electronic Agent, presentation of the [contract] term must be capable of invoking a response from a reasonably configured electronic agent.” Hence, the well-known “reasonable person” standard applicable to human beings has been superseded in the UCITA by a “reasonably configured” standard for transactions that involve bots. This same standard applies with respect to an electronic agent’s opportunity to review the terms of an agreement prior to manifesting assent thereto. THE UCITA’S RATIFICATION OF BOT-BASED AGREEMENTS Section 206 of the UCITA expressly allows for the formation and enforceability of contracts where either the offeror or offeree (or both) just happens to be a bot. Official Comment 2 to Section 206 states that: “[I]nteraction of electronic agents creates a contract if the parties use the agents for that purpose and the operations of the electronic agents indicate that a contract exists. Conduct, even automated, can create a contract. Whether a contract is formed focuses on the operations of the agents.” The UCITA resorts to an implied-in-law standard for determining whether or not electronic agents have objectively manifested assent. The bot’s intent is superseded by its actions under the statute. In fact, Official Comment 3C to Section 112 provides that, with respect to bots,”assent cannot be based on knowledge or reason to know, since computer programs are capable of neither.” Thus, if a bot is deployed in order to accept the terms of an online software license, and subsequently clicks through the “I Accept” button, the deployer/licensee is generally bound under the UCITA. This concept is expressly supported by the language of Official Comment 2 to Section 202, which clearly states that, “[T]he agent’s operations bind the person who deployed the agent for that purpose” There is however at least one circumstance in which electronic agents cannot bind their deployer. As expressed in UCITA Section 206, Official Comment 2, “An electronic agent may accept an offer, but acceptance of a message that is not an offer (such as an advertisement) does not form a contract.” Therefore, the UCITA retains the common law rule of assent (which bots cannot be used to circumvent) that states that advertisements are merely invitations to make offers. One noteworthy context in which bots are specifically addressed by the UCITA pertains to the express warranties of licensors. The statute adopts the position that bots are incapable of making express warranties on behalf of their licensor/deployer. UCITA Section 402, Official Comment 10 provides that, “[T]his section does not deal with “representations” by electronic agents in an automated negotiation. It deals with representations by a licensor. Human beings, with rich contextual understandings, can often distinguish between “falsity” and “white lies” or “puffing”. Electronic agents are rarely capable of recognizing the difference.” It’s not unreasonable to assume that future advances in artificial intelligence research may soon render these comments meaningless. For now, at least, even the drafters of the UCITA are unwilling to equate the mental capacity of bots with that of human beings. As courts begin to grapple with interpreting the various provision of the UCITA, it will be interesting to see whether or not Comment 10 will be adopted as the defendants’ darling.It’s not difficult to envision a scenario whereby a defendant asks the court to rescind a software license that an electronic agent consummated on their behalf, based on the reasoning of Comment 10 (� 402). Language in the UCITA which addresses the mental limitations of bots may well become the most frequently quoted in legal briefs and law review articles during the coming years. CONCLUSION To date, the UCITA has only been mentioned in two judicial opinions. See M.A. Mortenson Company, Inc. v. Timberline Software Corp., 140 Wash.2d 568, 998 P.2d 305 (2000); and Klocek v. Gateway, Inc., No. 99-2499-KHV, 2000 U.S. Dist. LEXIS 9896 (D. Kan. June 15, 2000). However, as additional state legislatures chose to adopt the UCITA the number of cases involving the statute will undoubtedly increase. And the issues in many of those cases will likely be centered on the actions of electronic agents. Gene J. Riccoboni is an associate at Grimes & Battersbybased in Stamford, Connecticut. He focuses on the areas of Internet Law, E-Commerce Law, and Domain Name Arbitration. Riccoboni can be reached by e-mail at [email protected] The views expressed in this article are those of the author and not necessarily those of Grimes & Battersby. This article is intended for informational purposes only and in no way constitutes legal advice.

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