Oregon Law Review : Vol. 86 No. 3, p. 797-864 : Clicking and Cringing
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Date
2007
Authors
Kim, Nancy S.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
This Article seeks to expand the current discussion
governing software licenses and argues that the sui generis
nature of software often necessitates deviations from the
classical contract model of bargaining. The
Introduction sets forth the doctrinal problems related to
nonnegotiated software licenses. Part I proposes a two-step
analysis. The first step is to determine whether the putative
licensee has assented and the nature of that assent (i.e. whether the
assent is to engage in the transaction or whether the assent is to a
particular term). The second step is to determine what terms
govern the activity based upon the nature of the assent. Part II
summarizes and analyzes the current case law using my proposed
approach, and applies the approach to a sample license
agreement. The Conclusion explains that a presumption of assent
to scope of license terms and a requirement of actual assent to
other material terms both respects the integrity of contract
doctrine and accommodates business realities.
Description
68 p.
Keywords
Software licenses
Citation
86 Or. L. Rev. 797 (2007)