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84 Tul. L. Rev. 1595 (2009-2010)

handle is hein.journals/tulr84 and id is 1615 raw text is: Expanding the Scope of the Principles of the Law ofSoftware Contracts To Include Digital Content Nancy S. Kim* The Principles of the Law of Software Contracts, or the Principles, seek to mify and claifythe law ofsoflware tansactions. The dralfeis, however, excluded dital content from the scope of their project. This Essay explains why the scope of the Principies should encompass difftal content The exclusion of di&gtal content creates two different but related problems. The ffrst problem is that it creates what Irefer to as classification confusion. Given the complexity and speed of technological innovation, the task of distinguishing digtal content from soiware may be diffcult for courts The second problem is that it fails to resolve the conundrun of how to balance the proprietary nghts and interests of hcensor-owneis and the nghts and interests of licensee-consumes. Thlus conundrum in turn has created problems of contractual form and user assent that arose out of software transactions but which have much more troubling applications in other contexts. With (and sometimes, even wfthout) a click of a mouse, one can relinquish intellectual property, privacy, and expression nghts. This Essay proposes that the Principles should geneially apply to digital content The Principles are an impressive accomplishment and go a long way toward unifying and clarifying the law of sofware tansactions. This Essay urges that they go even further I. INTRODUCTION ........................................................................... 1596 11. THE SCOPE OF THE PRINCIPLES OF THE LA WOF SOFTWARE C ON TRACTS ............................................................................... 1597 A. Sofiware and Digital Content Defined ........................... 1598 B. Reasons for the Exclusion ofDigital Content from the Scope of the Pinciples andArguments Against Those R easons .................................................................. 1599 III. WHY THE SCOPE OF THE PRINCIPLES SHOULD INCLUDE D IGITAL CONTENT ..................................................................... 1603 A. Digital Content and Software Share Similar Characteristics .................................................................. 1604 B. Digital Content Is Often Bundled with Software ........... 1606 C Reduces Judicial Discretion and Uncertainty ................. 1608 IV C ONCLUSION .............................................................................. 1609 * © 2010 Nancy S. Kim. Nancy S. Kim is an Associate Professor at California Western School of Law and a Visiting Professor at the Rady School of Management, University of California at San Diego. The author thanks Keith Rowley and Kristen Schlemmer for organizing this symposium. The author also thanks the editors of the Tulane Law Review for their assistance. 1595

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