Document Type

Article

Publication Date

2007

Abstract

Shrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in "rolling contract" situations. In this Article, I propose that a consumer's assent to a transaction should not be transmuted into blanket assent to each individual term of a nonnegotiated contract. Instead, the concept of "assent" should be bifurcated into two parts, actual assent and presumed assent. Actual assent means manifested, express agreement. Presumed assent means that the licensee, by expressly agreeing to the transaction, may also be presumed to have assented to certain terms of the contract. The licensee should not be presumed to have assented to all "not unreasonable" contract terms, however, as is currently the case under the "blanket assent" approach to contracts. Whether the licensee's assent to a given term may be presumed depends upon the operative effect of the term. The licensee may be presumed to have assented to provisions governing the "scope of license" or the "terms of use" (as further defined) to the software or web site because such terms establish the conditions upon which the licensor has agreed to make the digital information available. Furthermore, the caption heading of "scope of license" or "terms of use" should not be determinative. The licensee should not be presumed to have assented to provisions that (i) impose affirmative obligations or (ii) purport to take away the licensee's legal rights. 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 H 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

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