Virginia Code 59.1-501.3: Scope; exclusions
(a) This chapter applies to computer information transactions.
Terms Used In Virginia Code 59.1-501.3
- Agreement: means the bargain of the parties in fact as found in their language or by implication from other circumstances, including course of performance, course of dealing, and usage of trade as provided in this chapter. See Virginia Code 59.1-501.2
- Computer: means an electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions. See Virginia Code 59.1-501.2
- Computer information: means information in electronic form that is obtained from or through the use of a computer or that is in a form capable of being processed by a computer. See Virginia Code 59.1-501.2
- Computer program: means a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result. See Virginia Code 59.1-501.2
- Contract: A legal written agreement that becomes binding when signed.
- Contract: means the total legal obligation resulting from the parties' agreement as affected by this chapter and other applicable law. See Virginia Code 59.1-501.2
- Copy: means the medium on which information is fixed on a temporary or permanent basis and from which it can be perceived, reproduced, used, or communicated, either directly or with the aid of a machine or device. See Virginia Code 59.1-501.2
- Financial services transaction: means an agreement that provides for, or a transaction that is, or entails access to, use, transfer, clearance, settlement, or processing of:
(A) a deposit, loan, funds, or monetary value represented in electronic form and stored or capable of storage by electronic means and retrievable and transferable by electronic means, or other right to payment to or from a person;
(B) an instrument or other item;
(C) a payment order, credit card transaction, debit card transaction, funds transfer, automated clearing house transfer, or similar wholesale or retail transfer of funds;
(D) a letter of credit, document of title, financial asset, investment property, or similar asset held in a fiduciary or agency capacity; or
(E) related identifying, verifying, access-enabling, authorizing, or monitoring information. See Virginia Code 59.1-501.2
- Goods: means all things that are movable at the time relevant to the computer information transaction. See Virginia Code 59.1-501.2
- Includes: means includes, but not limited to. See Virginia Code 1-218
- Information: means data, text, images, sounds, mask works, or computer programs, including collections and compilations of them. See Virginia Code 59.1-501.2
- Informational rights: include all rights in information created under laws governing patents, copyrights, mask works, trade secrets, trademarks, publicity rights, or any other law that gives a person, independently of contract, a right to control or preclude another person's use of or access to the information on the basis of the rights holder's interest in the information. See Virginia Code 59.1-501.2
- Insurance services transaction: means an agreement between an insurer and an insured that provides for, or a transaction that is or entails access to, use, transfer, clearance, settlement, or processing of:
(A) an insurance policy, contract, or certificate; or
(B) a right to payment under an insurance policy, contract or certificate. See Virginia Code 59.1-501.2
- License: means a contract that authorizes access to, or use, distribution, performance, modification, or reproduction of, information or informational rights, but expressly limits the access or uses authorized or expressly grants fewer than all rights in the information, whether or not the transferee has title to a licensed copy. See Virginia Code 59.1-501.2
- Mass-market transaction: means a transaction that is:
(A) a consumer contract; or
(B) any other transaction with an end-user licensee if:
(i) the transaction is for information or informational rights directed to the general public as a whole, including consumers, under substantially the same terms for the same information;
(ii) the licensee acquires the information or informational rights in a retail transaction under terms consistent with an ordinary transaction in a retail market; and
(iii) the transaction is not (a) a contract for redistribution or for public performance or public display of a copyrighted work; (b) a transaction in which the information is customized or otherwise specially prepared by the licensor for the licensee, other than minor customization using a capability of the information intended for that purpose; (c) a site license; or (d) an access contract. See Virginia Code 59.1-501.2
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Virginia Code 59.1-501.2
- Release: means an agreement by a party not to object to, or exercise any rights or pursue any remedies to limit, the use of information or informational rights which agreement does not require an affirmative act by the party to enable or support the other party's use of the information or informational rights. See Virginia Code 59.1-501.2
- State: means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. See Virginia Code 59.1-501.2
- United States: includes the 50 states, the District of Columbia the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands and the United States Virgin Islands. See Virginia Code 1-255
(b) Except for subject matter excluded in subsection (d), if a computer information transaction includes subject matter other than computer information or subject matter excluded under subsection (d), the following rules apply:
(1) If a transaction includes computer information and goods, this chapter applies to the part of the transaction involving computer information, informational rights in it, and creation or modification of it. However, if a copy of a computer program is contained in and sold or leased as part of goods, this chapter applies to the copy and the computer program only if:
(A) the goods are a computer or computer peripheral; or
(B) giving the buyer or lessee of the goods access to or use of the program is ordinarily a material purpose of transactions in goods of the type sold or leased.
(2) Subject to subsection (d)(2)(A), if a transaction includes an agreement for creating or for obtaining rights to create computer information and a motion picture, this chapter does not apply to the agreement if the dominant character of the agreement is for creating or obtaining rights to create a motion picture. In all other such agreements, this chapter does not apply to the part of the agreement that involves a motion picture excluded under subsection (d)(2), but does apply to the computer information.
(3) In all other cases, this chapter applies to the entire transaction if the computer information and informational rights, or access to them, is the primary subject matter, but otherwise applies only to the part of the transaction involving computer information, informational rights in it, and creation or modification of it.
(c) To the extent of a conflict between this chapter and Title 8.9A, Title 8.9A governs.
(d) This chapter does not apply to:
(1) a financial services transaction;
(2) an insurance services transaction;
(3) an agreement to create, perform or perform in, include information in, acquire, use, distribute, modify, reproduce, have access to, adapt, make available, transmit, license, or display:
(A) a motion picture or audio or visual programming other than in (i) a mass-market transaction or (ii) a submission of an idea or information or release of informational rights that may result in making a motion picture or a similar information product; or
(B) sound recording, musical work, or phonorecord as defined or used in Title 17 of the United States Code as of July 1, 1999, or an enhanced sound recording, other than in the submission of an idea or information or release of informational rights that may result in the creation of such material or a similar information product.
(4) a compulsory license;
(5) a contract of employment of an individual, other than an individual hired as an independent contractor, unless such independent contractor is a freelancer in the news reporting industry as that term is commonly understood in that industry;
(6) a contract that does not require that information be furnished as computer information or in which under the agreement the form of the information as computer information is otherwise insignificant with respect to the primary subject matter of the part of the transaction pertaining to the information;
(7) unless otherwise agreed in a record between the parties:
(A) telecommunications products or services provided pursuant to federal or state tariffs; or
(B) telecommunications products or services provided pursuant to agreements required or permitted to be filed by the service provider with a federal or state authority regulating these services or under pricing subject to approval by a federal or state regulatory authority; or
(8) subject matter within the scope of Titles 8.3, 8.4, 8.4A, 8.5A, 8.7, or 8.8A.
(e) As used in subsection (d)(2)(B), “enhanced sound recording” means a separately identifiable product or service the dominant character of which consists of recorded sounds but which includes (i) statements or instructions whose purpose is to allow or control the perception, reproduction, or communication of those sounds or (ii) other information so long as recorded sounds constitute the dominant character of the product or service despite the inclusion of the other information.
(f) As used in this section, “motion picture” means:
(1) “motion picture” as defined in Title 17 of the United States Code as of July 1, 1999; or
(2) a separately identifiable product or service the dominant character of which consists of a linear motion picture, but which includes (i) statements or instructions whose purpose is to allow or control the perception, reproduction, or communication of the motion picture or (ii) other information so long as the motion picture constitutes the dominant character of the product or service despite the inclusion of the other information.
(g) As used in this section, “audio or visual programming” means audio or visual programming that is provided by broadcast, satellite, or cable as defined or used in the federal Communications Act of 1934 (47 U.S.C. § 151 et seq.) and related regulations as they existed on July 1, 1999, or by similar methods of delivery.
2000, cc. 101, 996; 2001, c. 763; 2004, c. 794; 2011, c. 369.