Another Court Finds 'Browserwrap' Terms Are Enforceable
from the so-which-is-it? dept
Just a few months ago we wrote about two separate lawsuits involving "browserwrap" or "clickwrap" agreements and whether or not they were enforceable. In the first one, an agreement was found to be enforceable even if the user on the website wasn't forced to view it, but it was just a link away. That seems to be the same view held by the court in a new ruling, that says that even if the agreement is on another page and the user never reads it, the fact that there's a link to it makes it enforceable. Frankly, I have a hard time seeing how that makes much sense, but it seems to be the way the courts are leaning. Of course, it's not all courts, though. Because the other case we wrote about a few months ago found exactly the opposite, saying that such a "browserwrap" agreement is not enforceable because the user was not adequately notified.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: agreements, arbitration, browserwrap, eulas
Reader Comments
Subscribe: RSS
View by: Time | Thread
Also, we are observing "herd mentality" here: most people trust that somebody, somewhere has read the contract and found it ok. If nobody has raised the alarm, things ought to be fine.
What's more, in many cases, the moment the user clicks "I agree" this kind of contract simply disappears. Where is the user copy?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Not again
I wonder, do these rulings set precedent? What impact will they have upon drive-by downloads? Open the flood gates or the a wave of new scams.
[ link to this | view in chronology ]
Ca-CHING!
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
what about ...
[ link to this | view in chronology ]
Re: what about ...
but who knows what that means in reality...
[ link to this | view in chronology ]
By reading this comment
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
At what point would you run out of that office screaming?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Leading to New Lending Terms
[ link to this | view in chronology ]
now i do agree with slacker52600 above, how can they possibly be allowed to change the terms of service without notifying the user? I know in MMORPG's, if there is a term of service change, they always post it before you log in after the update. I think all companies that change their terms should be force to do this.
[ link to this | view in chronology ]
Shady
Don't be lazy.
[ link to this | view in chronology ]
Re: Shady
[ link to this | view in chronology ]
Re: Re: Shady
In the case of the story above if you have the chance to click a link to read a sites terms of service, or a software EULA before you agree then you need to read them plain and simple.
[ link to this | view in chronology ]
Re: Re: Re: Shady
I understand it's done to prevent the I to be read as an l or something, but it's just not friendly on the eyes, and if you want people to really read and understand the EULA don't make it fifteen pages long. Just keep it simple and set the rules and benefits in clear plain vanilla text.
[ link to this | view in chronology ]
Can you image every time you visit a new website, you are forced off to a terms and conditions page,with a check box next to each item, that requires you to specifically acknowledge each item in the T&C? That certainly isn't practical, now is it? We would spend more time online clicking terms, and almost no time actually enjoying the content.
What other choices really exist?
[ link to this | view in chronology ]
Re:
Sensible terms?
[ link to this | view in chronology ]
Re:
> be practical.
The fact that current contract law is inconvenient, doesn't mean it's invalid. You don't throw out a thousand years of statutory and traditional common law merely because following its principles becomes difficult for the big company on the internet.
Your argument is similar to the one the police constantly make regarding the Constitution's protections: it's too difficult for us to do our jobs if we have to constantly worry about people's rights.
Well, too bad. Find another line of work if you can't live by the rules. Same is true with these businesses. If they can't abide by the standards of contract law that we've had for centuries, then they should go find some other way of making a buck.
We have to get away from this notion that just because something is done on the internet, all the rules change.
[ link to this | view in chronology ]
Re:
One reason I use open source software is, as long as the maintainer doesn't change the license he/she uses, I know my rights at all times.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Is the Judge, Judges getting a kickback?
There is always real mail and postal service and Notary Public's where this could be legal and binding.
www.techdirt.com
Click that link and your soul is mine!!
[ link to this | view in chronology ]
what is and isn't enforceable online
As to whether a unilateral right to change the terms of a contract is something a court will enforce, there is very little case law as yet, but at least one federal court has held that under California law those provisions are NOT enforceable. See http://www.karlbayer.com/blog/?p=3940
[ link to this | view in chronology ]
My Terms of Dealing
Generally, they will grant me reasonable rights such as returns with paid shipping, satisfaction guarantees, a decent warranty, etc. Nothing too out of line.
They can click and read them before accepting my sale, if they want. I would say my terms are just as valid as their own terms (will mine be explicitly supercede where there is a conflict).
Oh, and I get a night with their daughter(s).
[ link to this | view in chronology ]
mike's sensationalist bullshit strikes again
This lady used an independent contractor search service, and before you use it, you have to fill out a form describing what type of contractor you need, and affirmatively click the submit button right next to the note that says something like "By clicking submit, I accept these terms and conditions" (and it has a link to the T&C). There is no logical reason why that should not be sufficient action to create a contract. She affirmatively clicked the button saying she agrees to those terms.
The bullshit that no court has upheld (and rightfully so) is the T&C link they put at the bottom of every page. In these kinds of cases, the site owner is arguing that you agreed to the terms by merely accessing the site. Rational people have a problem with this because it's a catch 22 -- you can't view the terms (or find out where they are) without having accessed the site, yet the terms are saying that by accessing the site, you agreed to the terms. That is your standard "By reading this, you agree to pay me $1 trillion billion fafillion jajillion dollars" that gets everyone so pissed off, and mike just happens to neglect to mention that this is the reasonable and normal case, while presenting it as the one that pisses everyone off.
Congratulations, mike again goes down as a sensationalist douche.
[ link to this | view in chronology ]