Defending Disclosure in Software Licensing

Abstract

For lack of our imagination, this article does not have the most scintillating title. However, the subject matter is critically important. We survey prominent kinds of disclosures in law and show why the disclosure tool, though subject to substantial criticism, is central to the legitimacy of any legal regime. Our working example is the American Law Institute’s “Principles of the Law of Software Contracts” (hereinafter “ALI Principles”).

The ALI Principles include three kinds of disclosure: disclosure of facts (concerning the quality of software), disclosure of terms (of standard forms), and disclosure of post-contract intentions (to pursue remote disablement of software). We take each up respectively in the three sections that follow and show how these forms of disclosure promote important social values and goals.

Keywords: disclosure, Internet, software, licensing

JEL Classification: law and economics