Clickwrap
A clickwrap or clickthrough
The content and form of clickwrap agreements vary widely. Most clickwrap agreements require the
The terms of service or license do not always appear on the same
Legal consequences
United States
Few cases have considered the validity of clickwrap licenses. Still, in the cases that have challenged their validity, the terms of the contract have usually been upheld:
- Feldman v. Google, Inc., 513 F.Supp.2d 229 (E.D.Pa. 2007) (upholding forum-selection clause)
- In re RealNetworks, Inc. Privacy Litigation, No. No. 00-1366, 2000 WL 631341 (D. Ill. May 8, 2000) (upholding an arbitration clause)
- Hotmail Corp. v. Van$ Money Pie, No. 98-20064, 1998 WL 388389 (N.D. Cal. Apr. 16, 1998) (granting spam or pornography). The court said that clicking the clickwrap button after notice gave consent.
- I. Lan Sys., Inc. v. Netscout Serv. Level Corp., 183 F. Supp. 2d 328, 336 (D. Mass. 2002) (upholding a clickwrap agreement on two grounds: first, clickwrap is simply "Money now, terms later" contract formation; second, the court found that the "additional terms" of the clickwrap license was not material under UCC (§207(2)(b)).
- Caspi v. Microsoft, LLC, held a forum selection clause in an online membership agreement was consented to when the user clicked the "I agree" symbol of the agreement in order to proceed with registration.
- In A.V., et al. v iParadigms, LLC, Judge Claude M. Hilton granted summary judgment on the students' complaint in favor of iParadigms/Turnitin, because they had accepted the click-wrap agreement on the Turnitin website.[2]
Even though courts have ruled some clickwrap licenses to be enforceable contracts, it does not follow that every term of every clickwrap license is enforceable. Clickwrap licenses must still meet the criteria for enforceability of a unilateral form contract. For example, see Bragg v. Linden Research, Inc., 487 F.Supp.2d 593 (E.D. Pa. 2007), in which the judge found certain aspects of the Second Life clickwrap agreement "unconscionable, and therefore unenforceable".[1]
Cases in detail
In
Essentially, under a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.
An earlier case,
A click-wrap license presents the user with a message on his or her
computer screen, requiring that the user manifest his or her assent to the terms of the license agreement by clicking on an icon. n12 The product cannot be obtained or used unless and until the icon is clicked. For example, when a user attempts to obtain Netscape's Communicator or Navigator, a web page appears containing the full text of the Communicator / Navigator license agreement. Plainly visible on the screen is the query, "Do you accept all the terms of the preceding license agreement? If so, click on the Yes button. If you select No, Setup will close." Below this text are three button or icons: one labeled "Back" and used to return to an earlier step of the download preparation; one labeled "No," which if clicked, terminates the download; and one labeled "Yes," which if clicked, allows the download to proceed. Unless the user clicks "Yes," indicating his or her assent to the license agreement, the user cannot obtain the software.
The clickwrap method was presented to the court in
More recently, in the 2017 opinion Meyer v. Uber Technologies, the Second Circuit of the United States Court of Appeal held that users were on fair notice of the arbitration provision in Uber's registration process, because Uber presented the app's terms of service via hyperlink. "While it may be the case that many users will not bother reading the additional terms, that is the choice the user makes," Judge Chin wrote. "The user is still on inquiry notice." The Court further held that "[w]hen considering the perspective of a reasonable smartphone user, we need not presume that the user has never before encountered an app or entered into a contract using a smartphone..." Instead, the Court explained that "[a] reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not."[5][6]
European Union
On 21 May 2015, the European Court of Justice decided in the case of El Majdoub v. CarsOnTheWeb.Deutschland GmbH (case n°C-322/14), on a referral from a German court,[7] that click-wrap agreements are acceptable under certain circumstances as a "durable record" of the acceptance of general conditions within the meaning of Regulation 44/2001 (now replaced by Regulation 1215/2012, also known as the 'Brussels I Recast Regulation').[8]
Research
Clickwraps have been shown to have an agenda-setting function, wherein aspects of clickwraps like prominent join buttons are easier to notice than the links to the privacy policies.[9]
See also
- Browse wrap
- Electronic signature
- Electronic Signatures in Global and National Commerce Act (ESIGN)
- Internet privacy
- Rudder v. Microsoft Corp.
- Shrink wrap contract
- SoftMan Products Co. v. Adobe Systems Inc.
- Software license
References
- ^ Murdoch University Electronic Journal of Law
- ^ Hilton, Claude (2008). "Memorandum Opinion" (PDF). United States District Court for the Eastern District of Virginia, Alexandria Division. Archived from the original (PDF) on 2010-07-05.
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(help) - ^ FindLaw Article
- ^ Loundy, David (February 8, 1996). "'Shrink-wrap' licenses don't shrink access to data". Chicago Daily Law Bulletin. p. 5.
- ^ "Meyer v. Uber Techs, Inc., Nos. 16-2750, 16-2752, 2017 WL 3526682 (2d Cir. Aug. 17, 2017)" (PDF). Archived (PDF) from the original on 2020-04-22.
- ^ Frankel, Alison (2017-08-17). "2nd Circuit's Uber arbitration ruling huge win for app industry". Reuters. Retrieved 2021-01-31.
- ^ Court of Justice of the European Communities, El Majdoub (Judgment) (2015) EUECJ C-322/14 (21 May 2015), accessed 1 May 2021
- ^ El Majdoub v CarsOnTheWeb.Deutschland GmbH: ECJ 21 May 2015, accessed 1 May 2021
- ^ Obar, J. A.; Oeldorf-Hirsch, Anne (2020). "The biggest lie on the internet: Ignoring the privacy policies and terms of service policies of social networking services". Information, Communication & Society. 23 (1): 128-147.
External links
YouTube Video: The Clickwrap and The Biggest Lie on the Internet
- Examples of Clickwrap contracts
- Online electronic signatures using clickwrap
- T-Mobile uses clickwrap for online phone purchases