Browse Wrap Information
Browse-wrap (also browse-wrap license) is a term used in Internet law to refer to a contract or license agreement covering access to or use of materials on a web site. Specifically, a browse-wrap license is expected or assumed to have been agreed to before a user browses the website.[1] It is similar to a clickwrap license, but specific to web browsing; both names come by analogy to shrink-wrap licenses. A small number of legal cases have been brought to determine whether browse-wrap licenses are enforceable, and at which point a user's acceptance of license terms can be established.
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Case law
In Specht v. Netscape, the court looked at the enforceability of a browse-wrap contract entered into on the Netscape website.[2] Users of the site were urged to download free software available on the site by clicking on a tinted button labeled "download".[3] Only if a user scrolled down the page to the next screen did he come upon an invitation to review the full terms of the program's license agreement, available by hyperlink.[4] The plaintiffs, who had not seen the agreement, downloaded the software and then were later sued for violations of federal privacy and computer fraud statutes arising from the use of the software.[5] The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent.[6] The court found that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms."[7] Because the plaintiffs were not put on notice of these terms they were not bound by them.[8]
In Ticketmaster Corp. v. Tickets.com, Inc., the court looked at a breach of contract claim where the terms and conditions were situated at the bottom of the home page in "small print." [9] The court ruled for the defendant in this case but did allow Ticketmaster to replead if there were facts showing that the defendant had knowledge of the terms and implicitly agreed to them.
In 2005, the Illinois Appellate Court ruled in favor of a browse-wrap agreement in Hubbert v. Dell Corp. In this case consumers of Dell products were exposed to a conspicuous hyperlink over a series of pages. The court found that this repeated exposure, and visual effect would put the reasonable person on notice of the "terms and conditions".[10]
Summary
A browse-wrap agreement can be formed by use of a web page or a hyperlink or small disclaimer on the page. It may only be enforced if the browsing user assents to it. For assent to occur the browse-wrap agreement should be conspicuous, state that there is an agreement, and provide where it can be located. Courts examine the enforceability of browse-wrap agreements on a case-by-case basis, and there are no "bright-line" rules on whether a given agreement is sufficiently conspicuous. However, based on Specht, some practitioners believe
that the icon for the terms of use agreement be placed in the upper left-hand quadrant of the homepage and that all visitors be channeled through the homepage. The reason for this suggestion is that the court will take judicial notice of the fact that all Internet pages open from the upper left-hand quadrant, thus the defendant must overcome the presumption that the icon was viewed. Without this presumption, the plaintiff has the burden of proving the defendant did see the icon.[11]
See also
References
| Constructs such as ibid., loc. cit. and idem are discouraged by Wikipedia's style guide for footnotes, as they are easily broken. Please improve this article by replacing them with named references (), or an abbreviated title. (February 2011) |
- ^ Ian A. Rambarran, "Are Browse-Wrap Agreements All They Are Wrapped Up to Be?" (November 25, 2006). bepress Legal Series. Working Paper 1885.
- ^ Specht v. Netscape Communications Corp., 306 F.3d 17 (2nd Cir.2002).
- ^ Id. at 22.
- ^ Id. at 23.
- ^ Id. at 23–25.
- ^ Id. at 29.
- ^ Id. at 29–30.
- ^ Id. at 30–32.
- ^ Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 525390, at *3 (C.D.Cal. March 27, 2000).
- ^ Hubbert v. Dell Corp., 835 N.E. 2d 113 (Ill. App. Ct. 2005).
- ^ Karen Berger and Jonathan Bick, New Jersey Law Journal, September 18, 2009.
External links
Categories: Software licenses | Computer law
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