Oregon Law Review : Vol. 86 No. 3, p. 797-864 : Clicking and Cringing
Kim, Nancy S.
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.