The Exportability of the Principles of Software: Lost in Translation?

TLDR

The Principles of Software Contracts, approved by the American Law Institute in 2004, mark a milestone in software law by addressing flaws in the Uniform Computer Information Transactions Act and the mechanical extension of sales law to software, while noting that the U.S.-centric project has limited exportability to the European Union. The article examines the evolution of software contracting law over two decades, the Principles of Software Contracts, and their exportability, especially to the European Union. The Principles successfully bring common sense to the common law of software contracts.

Abstract

The American Law Institute approval of The Principles of Software Contracts is a significant milestone in the history of software law. The project began in 2004 because of the flaws of the Uniform Computer Information Transactions Act concerning this issue, problems strengthened by the widely held perception that the law at the time was "undeveloped, confused, and conflicting." Software licensing is presently America's third largest industry and has suffered from the mechanical extension of the law of sales to software over the last forty years, much like courts imported "horse and buggy law" to resolve problems posed by the automobile. Thankfully, the Principles achieve the objective of bringing common sense to the common law of software contracts. However, the project is heavily centered on the United States with limited exportability to the European Union in its current form. This piece looks at the path of software contracting law over the past twenty years, the Principles of Software Contracts itself, and its exportability to the rest of the world, particularly the European Union.