Research project

Investigator:

Katharina Erler

Abstract:

Digital products such as software, apps, digital music and electronic books are commonly traded and supplied to consumers. The fast race between the technological and legal developments comes – as always – at the expense of legal certainty and creates questions, especially when consumers are not satisfied. The supplied e-book might only be readable at a far slower pace than the consumer expects. An app might be incompatible with other devices. Music files might be supplied in a certain format which the consumer’s device cannot handle. In such cases, several legal issues arise, including classical questions of contract law: What are the applicable standards of quality? Which remedies are available and/or adequate for consumers?

This project aims to investigate the influence of IP law on the application of sales law with respect to digital products in the United States and Europe. Applying rules on sale of goods or other transactions possibly could resolve questions that arise from those contracts, for the United States as well as for Europe. Regarding software transactions, courts and legal scholars in both legal systems have discussed the application of sales law extensively. Nevertheless, what sounds like an easy solution at a second glance turns out to be complex. Due to the specific information-centric character of digital products, IP law also plays a leading role in analyzing contractual cases on digital products. Thus, contract law and IP law mutually influence each other, but their general policy goals and technical details conflict. Moreover, tension between federal law and state law, as well as between European Union law and Member State law, is at stake.

This project poses the methodological question of how sales law and IP law interrelate in the field of digital products. The relationship between both disciplines has been widely discussed in both legal systems and brings about lots of methodological issues, including questions of hierarchy of norms, the relationship of common law and statutory law, and the interplay of the two main disciplines involved, sales law and IP law.

By analyzing US and EU case law, this project aims to answer the question of how IP law and the granting of rights through licenses influence the application of sales law. As a first step, the project examines relevant case law as to the use of methodological arguments on the basis of general rules on hierarchy, as well as on the basis of the relationship of common and statutory law. Furthermore, the project will explore the other arguments and factors that are involved in courts decisions. In general, the project aims to produce a comparative analysis of methodological issues arising from the question of how sales law and IP law interrelate in the field of digital products. Therefore, similarities and differences in the United States and Europe will be identified.

Finally, the project will critically reflect on tendencies in the legal development, analyze causes for such developments in legal structure, and consider policy debates.