Rethinking Consideration in the Electronic Age

Abstract:     
Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual framework working in tandem with the intellectual property laws is the appropriate legal structure to govern FOSS transactions. Our discussion holds implications for the understanding of consideration doctrine and contract law generally outside of the FOSS example and, indeed, for collaborative development and electronic agreements generally. The article is thus an exercise in understanding consideration doctrine's past and future.

Keywords: contract, consideration, copyright, open source

Working Paper Series