Contracting Out of Article 2 Using a 'License' Label: A Strategy that Should Not Work for Software Products

20 Pages Posted: 27 Mar 2007

See all articles by Jean Braucher

Jean Braucher

University of Arizona - James E. Rogers College of Law (Deceased)

Abstract

Using a functional approach to commercial law classification of contracts in software products, this article takes the position that because Article 2 of the Uniform Commercial Code works for these transactions, it should apply. This is the usual approach in the courts, increasingly even for customized software developed for a particular customer. Attempting to contract out of Article 2 using a license label thus is an ineffective legal strategy. Article 2 serves well for the issues it addresses, such as contract formation, quality warranties, and damage remedies. Further law reform will eventually be desirable for the issues at the intersection of commercial and intellectual property law, particularly default use and transfer rights and the limits of contractual (and technological) restrictions on these rights.

Keywords: software, license, UCC Article 2, legal classification, sales

JEL Classification: K12, K2

Suggested Citation

Braucher, Jean, Contracting Out of Article 2 Using a 'License' Label: A Strategy that Should Not Work for Software Products. Loyola of Los Angeles Law Review, Vol. 40, p. 261, 2007, Arizona Legal Studies Discussion Paper No. 07-12, Available at SSRN: https://ssrn.com/abstract=975590

Jean Braucher (Contact Author)

University of Arizona - James E. Rogers College of Law (Deceased) ( email )

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