Earticle

초록

영어

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
  1. 영국
  2. 독일
  3. 캐나다
  4. 우리나라
 Ⅲ. 미국법상 온라인 라이센스 계약의 규제
  1. 연방통신법상의 약관규제
  2. 온라인 라이센스 계약의 효력에 관한 법리 동향 분석
 Ⅳ. 결 어
 참 고 문 헌
 

키워드

저자

• 이경규 [ Lee, Kyung-Gyu | 인하대학교 법학전문대학원 교수, 법학박사. ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340