Judge Easterbrook of the U.S. Court of Appeals for the Seventh Circuit has become an unlikely force in software licensing issues. His application of law and economics has benefited consumers and promulgated software innovation. In upholding clickwrap licensing agreements within the context of copyright law, the floodgates were opened for sister circuits to do the same. Judge Easterbrook later applied this reasoning and further advanced his policies in a case about an "in the box" warranty of a computer purchase. Through this jurisprudence, open source software has flourished and thrived, largely through clickwrap agreements. The benefits to consumers and to society from open source are substantial, as it is a worthy alternative to the traditional commercial software model. Recently, the court recognized these benefits in striking down an antitrust challenge to the open source model. The application of law and economics to software licensing issues has resulted in a positive outcome for consumers: an outcome that promotes innovation in the best sense of the Copyright Act and competition in the best sense of antitrust laws.
Patrick J. Mondi,
I Accept the Terms in This Agreement: Market Efficiency in Clickwrap Agreements and Open Source Software,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol2/iss2/5