A Study on Principles of the Law of Software Contracts Drafts in America

미국 소프트웨어 계약법 원칙 초안에 대한 소고

The American Law Institute(ALI) has presented drafts of "Principles of the law of software contracts" to clarify and unify the law of software transactions. These principles apply to agreements for the transfer of or access to software. Providing these principles means something in software contracts. First of all, these principles seek to limit the scope to cover only contracts involving software exchanged or accessed for consideration, while UCITA includes a wide variety of "computer information". Secondly, this project is "Principles" instead of "Restatement" which means that these principles are not the law unless a court adopts it. This is for flexibility not to hinder law's adoptability of new legal issues that might be created in the future since the software industry has developed. Third, the project seek to balance between software transferor's interest and transferees to permit the use of remote disablement in limited circumstances. These principles, however, should be considered some concerns in the future work. For example, not to be a unconscionable agreement, it is better to suggest the specific click-wrap procedure and be more illustrative about what types of browser-wrap language are acceptable and what types are not.