Transcript Click Wrap Contracts

Browsewrap Contracts
(Terms of Use Contracts)
Richard Warner
Terms Of Use Contracts
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Web sites typically contain an agreement
defining the terms on which the web site may
be used.
In many cases, no affirmative act of assent is
requested or required with respect to these
agreements.
First Restaurant Analogy
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You walk into a restaurant and order
dinner. When the bill is presented it
includes a service charge of 50%.
When you ask what is going on, the waiter
produces a contract which says in part,
“All guests agree to pay a service charge
of 50%.”
The contract was posted in the kitchen.
No Offer And Acceptance
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You are not obligated to pay the charge.
Why? No offer and acceptance.
A communication is an offer if it is a (1)
manifestation of willingness to enter into a
bargain (2) so made as to justify the recipient
of the communication in understanding that
his or her assent will conclude the bargain.
There is no manifestation of a willingness to
enter into a bargain
The first paragraph of Amazon's TOS
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Amazon provides website features to you
subject to the following conditions. If you visit
or shop at Amazon.com, you accept these
conditions. Please read them carefully.
www.Disney.com
If, through participation in
certain activities, you send
any material (e.g., postings
to chat, boards, or contests)
or, despite our request, you
send us unsolicited creative
suggestions, ideas, notes,
drawings, concepts, or other
information (collectively, the
"Submissions"),
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the Submissions shall be deemed, and shall
remain, our property. None of the Submissions
shall be subject to any obligation of
confidentiality on our part and we shall not be
liable for any use or disclosure of any
Submissions. Without limitation of the
foregoing, we shall exclusively own all nowknown or hereafter existing rights to the
Submissions of every kind and nature
throughout the universe and shall be entitled to
unrestricted use of the Submissions for any
purpose whatsoever, commercial or otherwise,
without compensation to the provider of the
Submissions or any other person or entity.
All mine!
Burning Man
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I understand that I have no rights to make
any non-personal use of any image, film, or
video footage obtained at the event, and that
I cannot sell, transfer, or give the footage or
completed film or video to any other party,
except for personal use, and I agree to inform
anyone to whom I give any footage, film, or
video that it can only be used for personal
use.
Alchemy Mindworks
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If a user fails to register software downloaded
through their web pages “a leather-winged
demon of the night will tear itself, shrieking
blood and fury, from the endless caverns of
the nether world, hurl itself into the darkness
with a thirst for blood on its slavering fangs
and search the very threads of time for the
throbbing of your heartbeat.” www.mi
ndworkshop.com/alchemy/alchemy6.html.
One More Analogy
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A knocks on door. B answers. As B holds the
door open for A to enter, B points to the sign:
Remove shoes before progressing. A does
not remove shoes as he proceeds into the
flat.
Has there been a breach of a contract?
Normally, A Permission/License
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Normally, the invitation to enter would
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give A the permission to enter,
That B could revoke whenever B wished.
It would not be a contract.
Specht v. Netscape
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The issue is the enforceability of an arbitration
clause in the license agreement governing the use
of Netscape’s SmartDownload program.
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The program that allows “users to download files from the
Internet without losing their interim progress when they
pause to engage in some other task, or if their Internet
connection is severed.”
The question is whether those who download the
software ever really agree to the terms of the
license.
Relevant Facts
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“By clicking on the box, a visitor initiates the
download. The sole reference on this page to the
License Agreement appears in text that is visible
only if a visitor scrolls down through the page to the
next screen [emphasis added].
“If a visitor does so, he or she sees: “Please review
and agree to the terms of the Netscape
SmartDownload software license agreement before
downloading and using the software.”
“Visitors are not required affirmatively to indicate
their assent to the License Agreement, or even to
view the license agreement, before proceeding with
a download of the software.”
The Court’s Conclusion
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“[T]he individual obtaining SmartDownload is
not made aware that he is entering into a
contract.”
The court offers its own analogy: “From the
user’s vantage point, SmartDownload could
be analogized to a free neighborhood
newspaper, readily obtained from a sidewalk
box or supermarket counter without any
exchange with a seller or vender. It is there
for the taking.”
Evolving Custom And Practice
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Experienced web users know that web sites
often contain terms of use contracts behind
hyperlinks located at the bottom of the home
page or some other relevant page.
An established custom and practice about the
existence and placement of these hyperlinks
makes it difficult for web site visitors to argue
that they were unaware that they were being
invited to enter into a contractual relationship.
Recent Cases
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The issues arises in recent cases in a
statutory context.
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The Computer Fraud and Abuse Act.
The Act prohibits unauthorized access to a
computer.
Web sites claim that the terms of use
agreemt defines what counts as authorized.
What Is Allowed?
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AT& T Cell Phone Contract, "Prohibited and
Permissible Uses“:
Downloading movies using P2P file-sharing
services, customer-initiated redirection of
television or other video or audio signals via
any technology from a fixed location to a
mobile device, Web broadcasting, and/or for
the operation of servers, telemetry devices
and/or Supervisory Control and Data
Acquisition devices is prohibited.
Can you stream video from YouTube to your
phone?
More AT &T
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On the 5GB DataConnect Plan, once you
exceed your 5GB allowance you will be
automatically charged $0.00048 per Kb for
any data used. On the 200MB Data Connect
Plan, once you exceed your 200MB
allowance, you will be automatically charged
$10 for an additional 100MB.