Clicking and Cringing

Abstract

Shrinkwrap, clickwrap and browsewrap licenses have complicated law by introducing non-traditional methods of contracting to govern the 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 formation, even in rolling contract situations. Some commentators have argued that existing law doctrines - such as unconscionability and good faith - are sufficient to address digital-era contracting dilemmas. While such arguments have their place in discussions about enforcement, because these doctrines are standard defenses, they fail to explain a finding of formation. In this Article, I propose a theory for non-negotiated software licenses. A consumer's to a transaction should not be transmuted into to each individual term of a non-negotiated contract. Instead, the concept of should be bifurcated into two parts, actual and presumed assent. Actual means express agreement, not simply to the transaction, but to each of the individual material terms. Presumed means that the licensee, by expressly agreeing to the transaction, may also be presumed to have assented to certain of the terms. The licensee should not be presumed to have assented to all terms, however, as is currently the case under the blanket assent approach to contracts. Whether the licensee's 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 or the of use (as further defined) to the software or website because such terms establish the conditions upon which the licensor has agreed to make the digital information available. The licensee's performance under the contract, however, would be conditioned upon notice. Furthermore, the caption heading of scope of or of use would not be determinative. The licensee should not be presumed to have assented to provisions that impose affirmative obligations or purport to take away the licensee's legal rights. Part I of this Article introduces the doctrinal problems related to non-negotiated software licenses. Part II proposes a 2-part methodology that first analyzes whether the putative licensee has assented and the nature of that (i.e. whether it is general to engage in a transaction or whether it manifests to the disputed term). The second step examines what terms govern the activity and determines enforceability according to the nature of the assent. Part III summarizes and analyzes the current case law using my proposed methodology, and applies the methodology to a sample license agreement. Part VI concludes that a presumption of to license terms and a requirement of actual to other material terms both respects the integrity of doctrine and accommodates business realities. A requirement of active affects the consumer experience and is therefore likely to influence contracting behavior.