미국법상 온라인 라이센스 계약의 유효성

• 영문명: The Enforceability of the On-line License Contracts under the U. S. Law
• 발행기관: 원광대학교 법학연구소
• 저자명: 이경규(Lee, Kyung-Gyu)
• 간행물 정보: 『원광법학』제25권 제2호, 65~88쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.06.30

영문 초록

Online vendors often seek to bind online consumers with contracts, frequently in the form of license agreements with standardized terms. Importantly, online vendors differ in the manner in which they present their license agreements and consequently, in the amount of notice they provide their consumers. Some automatically splash their license on the screen and require consumers to click an “I agree” icon; others merely create a link to their license and do not require a clicking acceptance. Courts have considered these various methods of online presentation, holding some licenses binding on consumers and others not. Courts have begun to utilize two broadly defined categories-clickwrap and browsewrap-in order to help characterize the various methods of presentation. A clickwrap license is an agreement in which the vendor requires the consumer to click an “I accept” icon or click-check an unchecked box for the agreement to take effect. The vendor may place the icon at the conclusion of an agreement, where the consumer must scroll downward through the entire list of terms to click on it. Alternatively, a court will likely characterize an online license as a browsewrap if the vendor utilizes a small link to the license, instead of automatically presenting it. Indeed, the vendor may even tuck the link in the corner of an interior webpage of the site so that consumers are unlikely to notice it. The characterization of an online license as either clickwrap or browsewrap is increasingly important because courts have found consumer assent to exist in the former, but not the latter. Beyond the recent cases dealing with online licenses, the case law surrounding shrinkwrap licenses is a useful guide to understanding what constitutes consumer assent in the online world. Accordingly, this article begins by analyzing the major cases surrounding shrinkwrap licenses and their relevance to licenses in cyberspace, and discusses various methods courts may use to strike or modify terms of an online license, even where the court finds consumer assent to the overall agreement. These methods include the unconscionability doctrine, consumer protection statutes, and federal preemption. U.S. courts will likely continue to find consumer assent in clickwrap licenses, but should rely on methods for striking or modifying terms within an online license.

목차

Ⅰ. 서 언

Ⅱ. 온라인 계약의 규제에 관한 비교법적 검토

Ⅲ. 미국법상 온라인 라이센스 계약의 규제

Ⅳ. 결 어

참고문헌

Abstract

키워드

온라인 거래 라이센스 계약의 유효성 저작권 불공정한 계약 licenses in cyberspace unconscionability doctrine federal preemption consumer protection statutes online licenses