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Post by Sapphire Capital on Oct 9, 2008 22:24:39 GMT 4
What's in a Standard Form Contract? An Empirical Analysis of Software License Agreements Florencia Marotta-Wurgler New York University - School of Law Journal of Empirical Legal Studies, Vol. 4, No. 4, pp. 677-713, December 2007 NYU Law and Economics Research Paper No. 08-35 Abstract: The vast majority of commercial transactions are governed by standard form contracts, but little is known about their actual content and the determinants of that content. This article provides a comprehensive empirical analysis of an important class of modern standard form contracts-software license agreements. In a sample of 647 licenses for software from various markets, I document the prevalence of terms relating to license acceptance, license scope, limitations on transfer, warranties, limitations on liability, maintenance and support, and conflict resolution. I find that almost all licenses display a net bias, relative to relevant default rules, in favor of the software company (the contract writer). I also investigate firm- and buyer-type determinants of the net bias. Larger and (controlling for size) younger firms offer more one-sided terms. Firms offer similar terms to both business buyers and members of the general public. In addition to providing new insight about the nature of standard form contracts, the results may inform efforts to draft new default rules to govern software transactions. papers.ssrn.com/sol3/papers.cfm?abstract_id=1186102
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Post by Sapphire Capital on Oct 9, 2008 22:25:10 GMT 4
Competition and the Quality of Standard Form Contracts: The Case of Software License Agreements Florencia Marotta-Wurgler New York University - School of Law Journal of Empirical Legal Studies, Forthcoming NYU Law and Economics Research Paper No. 08-36 Abstract: Standard form contracts are pervasive. Many legal academics believe that they are unfair. Some scholars and some courts have argued that sellers with market power or facing little competitive pressure may impose one-sided standard form terms that limit their obligation to consumers. This paper uses a sample of 647 software license agreements drawn from many distinct segments of the software industry to empirically investigate the relationship between competitive conditions and the quality of standard form contracts. I find little evidence for the concern that firms with market power, as measured by market concentration or firm market share, require consumers to accept particularly one-sided terms; that is, firms in both concentrated and unconcentrated software market segments, and firms with high and low market share, offer similar terms to consumers. The results have implications for the judicial analysis of standard form contract enforceability. papers.ssrn.com/sol3/papers.cfm?abstract_id=1186143
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