Research On Computer Software Shrinkwrap License

Computer software is protected mainly by copyright after the protection by way of patent, copyright and trade secret law. Since copyright is selected to protect the computer software, license is the necessary step for the utilization of computer software. With the rapid development of computer technology and internet, the manifestation of software license is multiple:shrinkwrap license contract;clip contract;mouse clip contract;clip wrap contract;web wrap contract; internet wrap contract and etc. The manifestation of the contract or the ways of acceptance can not change the classic shrinkwrap license contract in the new historic background. Nowadays, the shrinkwrap license contract is still a basic way for copyright owners to license others to use digital works.While the shikwrap license contract is contected to copyright and the number of the software industries and end users is huge, few people pay much attention to it. As far as today, some scholars have done some research mainly on the validity of the contract. Some foreign scholars not only did some research on the vailidity but also on the development history and the effect on the fair use and first sale doctrine. Comparatively, American scolars have done deep research. But, it is to see the differences of legal systems between China and America and Britain. For example, copyright is the federal law, and the contract law is state law. The preemption exists in the United States. In China, copyright and contract laws are both civil laws, and no preemption exists between them. At the time, the software industry developed rapidly in recent years, software need to be protected by legal insititutions. So the systematic and deep research on it is necessary.Documentary research, empirical research, qualitative research and comparative research are used in this paper. The documents come from not only Chinses works and papers but also English works, papers and acts and treaties. Of Course, the trails about shrinkwrap license are read to base the foundation for the paper. Comparatively, the domestic trials are fewer than the trials abroad. Acorrding to intellectual property, especially the basic theory of copyright, shrinkwrap license can be interpreted. We can learn from others to build better legal institutions about shrinkwrap license.The paper can be divided into six parts.Some basic legal issues are discussed in the first part. Since software was protected by the way of coptyright,it is a digital work. With the development of internet, the utilaization of the digital work is different from the tradional works. Many kinds of license contracts such as shrinkwrap license contract;clip contract;mouse clip contract;clip wrap contract;web wrap contract; internet wrap contract have appeared. License and license contract are different concepts, but in the above terminologies, license, license contract and license certificate are almost the same. The charactera of shrinkwrap license is read as a king of software trasaction, a kind of standard contract and a kind of selfrelief.In the second part, the initial of software shrinkwrap and the development history are trapped. From the Respective of copyright, software somewhat changes the theory of copyright:softwares focuse on the function but not the artistic character; software uses technical measures to control the use of software. Thus, the protection by way of copyright seems to "fail" because software focuses on idea and function, but they are no protected by copyright; the scope of fair use of copyright is demanded to expand under the inviroment of highly valueing inspiration and technology development; first sale can not be adopted in the cyberspace. It is easy to see pirated software, but software producers dan do nothing. Thus, shringkwrap license is the first choice in the present legal condition to protect the software, and it is the trade practice. Now shrinkwrap develops to be two stypes.In the third part, the debate and criticize on software shrinkwrap in its development. The debate can be seen in four points. First, is software transaction lisence or sale? In the software shrinkwrap lisence, copyright owner declares that the software is lisenced but not saled to protect his rights; in the meaning of transferring proprietorship, copyright owner thinks that it is difficult to proect his rights if he sales the software. Second, there are many right abuses in the shrinkwrap license. For example, shrinkwrap licenses usually prohibit reverse engineering or modification of the software. Copyright owners sue the end users at their will, and the anti-trust law and comsumer protection law can not be obeyed in shrinkwrap license. Third, shrinkwrap and technology combine to expand the copyright owners’rights. The rights defined by shrinkwrap are strengthened by technical measears. Fourth, the present shrinkwrap license not only defines the scope of rights and duties but also control the use of software. The character can be seen in the traditional software, and it also exists in the open source software license.The validity of software shrinkwrap is interpreted in fourth part. The attitude to validity of software shrinkwrap license changes from the whole to part of the license. This paper thinks that the validity should be judged in way of contract law, copyright law and other related laws together. Because fair use is an important institution for work users, it should be an important element for the validity of shrinkwrap while restricting the fair uses.The concept of the future shrinkwrap license should be sticked is dicussed in fifth part. First, public domain and fair use are two questions for the future shrinkwrap license because they good to restrict the expanding copyright owners’rights by way of technical measears, economic power and other resources. At least, public domain can be regarded the core of copyright to resist the copyright expand. Second, though there are various insititutions to restrict copyright, fair use is still the most important one because the springiness of fair use can change with the development of economy and technology. The fair use should be perfected in the new codition. Third, the shrinkwrap license should be a real one. Thus, the transaction of software is license, but not a sale. Only in this direction, can the open license be perfected in the future.In the last part, the measures we can adopt to accomplish the shrinkwrap license are showed. The first measure is that the character of software transaction should be regarded as license but not a sale. From the step of the contract, we can see it. Second, the open source licenses are widespread in the world, so the function of the open source organization should be important. The organization can do something for the accomplishment of shrinkwrap license.In all, the logic course is that question-analysis-solving. Before the questions, the shrinkwrap license itself and related questions are probed. After the analysis, the history of shrinkwrap is found to explain why the copyright is chosec to protect the software. But the quarrels appear because there are advantages and disadvantages in protecting computer software by way of copyright. Therefore, the ways to solve the questions are shown theoretically and practically.The creative points in the essay are the followings. First, shrinkwrap license is systematically analysed. Nowsdays, the aricles on shrinkwrap mainly talk about the validity and judge, but few people talk about character, history prohibiting users’rights and accomplishment. Second, the course of the copyright in the software protection is probed. Since the birth of computer software, how to protect it is a question. Third, accomplish the shrinkwrap license, we not only cbtain the value of public domain and fair use but also utilize the freedom idea of open source compter organization. Today, the shrinkwrap licenses are criticized because of the casual modification on copyright. Because of the trendacy of comercialization of open source compter software, the strong prohition and weak prohition of open source software can be combined to accomplish the shrinkwrap licenses.The shortcomings are followings. Because I can not understand German and French, so the document of shrinkwrap license can not enter into this paper. Second, the topic in this essay is related to copyright, contract law, and the computer software develops quickly, so the relative legal insitutions and technical developments should be in the view. Some ponts may be out of date.