US Influence With a Twist: Lessons about Unfair Contract Terms from US Software Customers

Abstract:     
US law reform organizations and the US government often seek to export US commercial law to other parts of the world. When it comes to the law of software and other digital products, the failure so far in the US to produce a successful domestic statute leaves other countries a window to develop their law for these transactions in relative independence from industry-driven US influence. Policymakers and regulators elsewhere may find useful the US customer coalition's principles project, outlining the major features of fair process and fair substance for mass-market transactions in digital products. This project, which implicitly critiques US producer practices as it envisions better ones, is consistent with emerging approaches to unfair terms regulation around the world. The customer coalition itself, made up of household consumers, businesses and libraries, is a sign of the failure of the market in terms for digital products. These terms have important public policy implications because of their potential impact on digital innovation and information policy. Rarely do customers of one type of product band together seeking a better balance in the law. The inclusion of business customers and public or not-for-profit institutions (libraries) in the coalition is a particularly interesting development that bears study for use in other mass-market contexts involving complex products and terms that are not serving customers well.

Number of Pages in PDF File: 20

Keywords: software, law reform, commercial law, unfair terms, US influence

JEL Classification: K12, K2, K33

Accepted Paper Series