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Browsewrap Contracts (Terms of Use Contracts) Richard Warner.

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1 Browsewrap Contracts (Terms of Use Contracts) Richard Warner

2 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. Terms Of Use Contracts

3 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. First Restaurant Analogy

4 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 No Offer And Acceptance

5 The first paragraph of Amazon's TOS 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.

6 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"),

7 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 now- known 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.

8 All mine!

9 Burning Man 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.

10 Alchemy Mindworks 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.” ndworkshop.com/alchemy/alchemy6.html.

11 One More Analogy 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?

12 Normally, A Permission/License Normally, the invitation to enter would  give A the permission to enter,  That B could revoke whenever B wished. It would not be a contract.

13 Specht v. Netscape The issue is the enforceability of an arbitration clause in the license agreement governing the use of Netscape’s SmartDownload program.  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.

14 Relevant Facts “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.”

15 The Court’s Conclusion “[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.”

16 Evolving Custom And Practice 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.

17 Recent Cases The issues arises in recent cases in a statutory context.  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.

18 What Is Allowed? 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?

19 More AT &T On the 5GB DataConnect Plan, once you exceed your 5GB allowance you will be automatically charged $ 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.


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