Research On The Legal Problems Of Computer Software Licensing

With the industrial development of computer hardware, computer hardware costs dropping lower and lower, eventually approaching the level of daily consumption. Computer come into every family, become an everyday household appliances. Computer hardware is not like other household appliances directly to the hardware device to serving humans, computers rely on software support in order to serve man. Therefore, the proliferation of computers at the same time led to the rapid development of computer software industry. Computer software industry as a high-tech industry with high economic value, help greatly to economic development, and computer software industry has characteristics of high-tech industries, such as low energy consumption, pollution-free, which make important significance toward the transformation of China’s economic development model. The State Council also continuously release policies in late2011and early2012,"encourage and support" the development of computer software industry.The rapid development of the software industry has brought a lot of legal issues, which has aroused extensive attention from scholars. China has also accelerated the legislation of the relevant software, made some breakthroughs in the field of software intellectual property protection. But it can not be ignored, that at present there are insufficiencies on awareness related to legal issues, the provisions is not specific enough, and the rights and obligations set is not enough clarity in the legislation. This article intends to conduct feasibility studies and research in respect of the legal nature of the trading behavior in the computer software industry, features, configuration of the rights and obligations and the corresponding legal regulation and relief measures to improve the law of the computer software in China. This paper consists of four chapters:Chapter I:characteristics of computer software transactions and legal nature. Characteristics of computer software transactions and the legal nature of analysis and argument to determine the nature of the mass-market transactions in computer software for protocol licensing practices, and further pointed out that the rights in computer software mass-market transactions in the legal core of the problem-the computer software transactions imbalance in the allocation of obligations It is rooted in the trading patterns of the software license agreement.Chapter II:using a comparative analysis of methods, analysis the adjustment experience and legislative experience of foreign countries in dealing with legal issues of computer software transactions, and the analysis mainly based on the United States. Because of the development of computer software industry in the legislation and regulation of the United States are in a leading position in the world, while the rest of the world about computer software intellectual property protection, and restrict, basically is effect of the United States. The United States respond to the legal issues of computer software transactions, starting from the effectiveness of the adjustment of computer software license agreement. Recognized by the software license agreement, the United States experienced a tortuous process, from the simple negation to the dichotomy, then the statute law to determine the transaction in the form of the software license agreement, to reflect a lack of practice in the U.S. legislative, judicial, analysis of the first specialized died because of the legal regulation of computer software transactions. In addition, the EU and other countries are also on the trading patterns of computer software license agreement to make adjustments accordingly.Chapter III:to face the current situation of our country to deal with legal issues of computer software transactions and the adjustment recommendations. Through the analysis of our existing laws, pointing out that the lack of legal existence of our country in the adjustment of computer software transactions and analysis of China’s "Software License Agreement first case, analysis of the practical realities of our software license transaction mode from the judicial practice, and finally, recommendations for future legislation.Conclusion:The legal problem of Computer software transaction is computer software transaction form, which is the shrink-wrap license agreement model software. Therefore, we must firmly grasp the software license agreement in understanding and adjustment of computer software trading legal issues. China’s legislative adjustment of software transactions will be with the software industry development process of constant development, legislative adjustment of software transactions should always focus on the configuration of justice of the rights and obligations. To ensure this fair we must start from the software license agreement, adjust the potency and content of agreement.