2006 Code of Virginia § 59.1-501.3 - Scope; exclusions

59.1-501.3. Scope; exclusions.

(a) This chapter applies to computer information transactions.

(b) Except for subject matter excluded in subsection (d), if a computerinformation transaction includes subject matter other than computerinformation or subject matter excluded under subsection (d), the followingrules apply:

(1) If a transaction includes computer information and goods, this chapterapplies to the part of the transaction involving computer information,informational rights in it, and creation or modification of it. However, if acopy of a computer program is contained in and sold or leased as part ofgoods, 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 programis ordinarily a material purpose of transactions in goods of the type sold orleased.

(2) Subject to subsection (d) (2) (A), if a transaction includes an agreementfor creating or for obtaining rights to create computer information and amotion picture, this chapter does not apply to the agreement if the dominantcharacter of the agreement is for creating or obtaining rights to create amotion picture. In all other such agreements, this chapter does not apply tothe part of the agreement that involves a motion picture excluded undersubsection (d) (2), but does apply to the computer information.

(3) In all other cases, this chapter applies to the entire transaction if thecomputer information and informational rights, or access to them, is theprimary subject matter, but otherwise applies only to the part of thetransaction involving computer information, informational rights in it, andcreation or modification of it.

(c) To the extent of a conflict between this chapter and Title 8.9A, Title8.9A 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, makeavailable, transmit, license, or display:

(A) a motion picture or audio or visual programming other than in (i) amass-market transaction or (ii) a submission of an idea or information orrelease of informational rights that may result in making a motion picture ora similar information product; or

(B) sound recording, musical work, or phonorecord as defined or used in Title17 of the United States Code as of July 1, 1999, or an enhanced soundrecording, other than in the submission of an idea or information or releaseof informational rights that may result in the creation of such material or asimilar information product.

(4) a compulsory license;

(5) a contract of employment of an individual, other than an individual hiredas an independent contractor, unless such independent contractor is afreelancer in the news reporting industry as that term is commonly understoodin that industry;

(6) a contract that does not require that information be furnished ascomputer information or in which under the agreement the form of theinformation as computer information is otherwise insignificant with respectto the primary subject matter of the part of the transaction pertaining tothe information;

(7) unless otherwise agreed in a record between the parties:

(A) telecommunications products or services provided pursuant to federal orstate tariffs; or

(B) telecommunications products or services provided pursuant to agreementsrequired or permitted to be filed by the service provider with a federal orstate authority regulating these services or under pricing subject toapproval by a federal or state regulatory authority; or

(8) subject matter within the scope of Titles 8.3, 8.4, 8.4A, 8.5A, 8.6A,8.7, or 8.8A.

(e) As used in subsection (d) (2) (B), "enhanced sound recording" means aseparately identifiable product or service the dominant character of whichconsists of recorded sounds but which includes (i) statements or instructionswhose purpose is to allow or control the perception, reproduction, orcommunication of those sounds or (ii) other information so long as recordedsounds constitute the dominant character of the product or service despitethe 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 ofJuly 1, 1999; or

(2) a separately identifiable product or service the dominant character ofwhich consists of a linear motion picture, but which includes (i) statementsor instructions whose purpose is to allow or control the perception,reproduction, or communication of the motion picture or (ii) otherinformation so long as the motion picture constitutes the dominant characterof the product or service despite the inclusion of the other information.

(g) As used in this section, "audio or visual programming" means audio orvisual programming that is provided by broadcast, satellite, or cable asdefined or used in the federal Communications Act of 1934 (47 U.S.C. 151 etseq.) and related regulations as they existed on July 1, 1999, or by similarmethods of delivery.

(2000, cc. 101, 996; 2001, c. 763; 2004, c. 794.)