Browsewrap
Browsewrap (also browserwrap or browse-wrap license) is a term used in
Browse-wrap agreements, like clickwrap agreements, derive their name by analogy to the "
Case law
In 2000, in
In 2002, in
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 repeatedly shown the words "All sales are subject to Dell's Term[s] and Conditions of Sale", including a conspicuous hyperlink, over a series of pages. The court found that this repeated exposure and visual effect would put a reasonable person on notice of the "terms and conditions".[5]
In contrast, in 2014, the United States Court of Appeals for the Ninth Circuit ruled in Nguyen v. Barnes & Noble, Inc. that Barnes & Noble's 2011 Terms of Use agreement, presented in a browse-wrap manner via hyperlinks alone, was not enforceable since it failed to offer users reasonable notice of the terms.[6]
Similarly, in
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.[8]
See also
References
- ^ a b c d Kwan v. Clearwire Corp., No. C09-1392JLR, 2012 WL 32380 (W.D. Wash. Jan. 3, 2012).
- ^ Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 366 (E.D.N.Y. 2009).
- ^ a b c d e f g h Specht v. Netscape Communications Corp., 306 F.3d 17 (2nd Cir.2002).
- ^ 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).
- ^ "Nguyen v. Barnes & Noble Inc., No. 12-56628 (9th Cir. 2014)". Justia Law. Retrieved 2024-02-07.
- ^ Davie, Alexander (31 January 2013). "Court's Invalidation of Zappos.com's Arbitration Provision Offers Lessons for Company Websites". LexisNexis. Retrieved 21 April 2021.
- ^ Karen Berger and Jonathan Bick, New Jersey Law Journal, September 18, 2009.