Accessing Truth: Marketplaces of Ideas in the Information Age

Abstract

There is a new business model developing in cyberspace that may change the Internet forever. Instead of charging Internet users individually to access their desirable content, some content-providers are now requiring ISPs to pay for their subscribers’ access on a per-subscriber basis. Disney (ESPN3), News Corporation (SPEED2), as well as Viacom, MGM, and Lionsgate (EpixHD), all currently employ this model.

What happens if virtual marketplaces like Twitter, YouTube, and Google also begin requiring ISPs to enter into these access agreements? These websites are pivotal in the Information Age; it is to the benefit of humankind that people continue accessing these marketplaces. However, what if Little ISPs cannot afford to enter into these contracts, and are thus unable to provide their subscribers with access to these websites?

In Part I, this Article introduces the concept of virtual marketplaces of ideas, and explains their significance in the twenty-first century. In Part II, this Article examines the inadequacies of the public policy exceptions of the UCC, UCITA, and PLSC, and recommends courts apply the narrower Reichman/Franklin standard when dealing with “mass-market contracts, non-negotiable access contracts, and contracts imposing non-negotiable restrictions on uses of computerized information goods[.]” In Part III, this Article concludes by offering an exception to a network neutrality proposal, which recognizes the need for a tiered Internet in a particular circumstance.

Keywords: ESPN3, Network Neutrality, Marketplaces, Access Agreements, UCC, UCITA, Principles of the Law of Software Contracts, Cultural Conditioning, Self-Actualization

JEL Classification: K10, K12, K20