The party autonomy theory and B2C online Software License Agreement

摘要

Enforcement of conflict of law rules in connection with the subject matter of intellectual property law on the Internet has become a timely issue. The purpose of this article is to focus on the enforcement of choice of law clause included in one particular type of contract that is a consumer software license agreement. Under French law, the subject matter of software license agreement is twofold. It involves the transmission of a copyrighted work on the one hand and the transfer of rights on a non-exclusive basis on the other hand. Let us consider the following hypothetical situation. A California online software distributor makes its software available online free of charge. Internet end-users who wish to obtain software from the distributor's web site access a page pertaining to the download of the software. By clicking on a box, end-users initiate the download. End-users are required to affirmatively review or indicate their acceptance of the Software License Agreement prior to downloading and using the software program. This Software License Agreement states that end-users must read and agree to the license agreement terms prior to downloading the software, and refers to the law of the State of California as the applicable law. A contract is thus formed and performed online which involves copyright in so far as the subject matter of the contract is a software product, that is a copyrighted work.