Principles of the Law of Software Contracts: Some Highlights

Abstract

The final draft of the Principles of the Law of Software Contracts ("Principles") was unanimously approved by the American Law Institute membership in May of 2009. The goal of the project is to “clarify and unify the law of software transactions.” However, the Principles will not become law in any jurisdiction unless and until a court adopts them, so only time will tell whether the project will accomplish this goal. Nevertheless, one thing is certain. The current law of software transactions, a mish-mash of common law, Article 2 of the Uniform Commercial Code, and federal intellectual property law, among other things, is in dire need of improvement. This should not be a surprise. Most of the bodies of law that courts draw upon to decide software contract cases predate software and are not responsive to its needs. But software transactions are too important to be relegated to a second-hand legal-subject-matter status.

In this symposium essay for the Tulane Law Review, we discuss the nature of the Software Principles and describe some of what we believe are highlights. By highlights, we mean not only Principles that we believe are helpful contributions to the goal of clarification and unification of software contract law, but also those that have already received some attention because of their controversial nature.

Keywords: software, Principles, disclosure, automated disablement