Most of you have probably seen these dialog boxes on your computer one time or another when installing software, etc. I’m clicking through one right now on Windows Update. There’s a box containing certain conditions that you have to “agree” to, by hitting OK, or Accept, or whatever.
My question is: legally, does something like this constitute an enforceable contract? Does the content of the agreement have any bearing on this? (i.e. is it only OK for software licenses, not for arbitrary matters?)
I’ve also seen variations that explicitly spell out “THIS IS A CONTRACT”; does that change things? How about the varieties that force you to scroll through the entire thing to indicate that you read the agreement? How about websites that say: “By entering/using this site you agree xyz”, or have “terms of use” statements?
No answer, but to add to: The big thing (a few years ago, maybe even still) for some sites was a “By entering this site, you agree that you’re not a law enforcement officer…” meant to keep cops out. I doubt this is enforcable at all, but would be curious to find out.
GMRyujin: Yeah, I’ve seen those too… I’m pretty sure those particular ones aren’t enforceable. This page on Snopes talks a little about those disclaimers, but doesn’t really get into any specific legal theory.
More generally, I’m curious about the “terms of use” on legitimate web pages. For example, Fox News’s terms of use specify that you are only “authorized” to view their page if you agree to their terms, and “If you do not agree with them, you should leave this Site immediately.”
So, what if someone disagrees with the terms and reads pages on their site anyway? (ignoring the practical questions such as “how would anyone know?”) Is that “unauthorized access” illegal? Or can the act of reading the pages be construed as an implicit acceptance of the terms?
… OK, now that I’ve finished demonstrating my ignorance of legal principles, I’ll just kind of end my post here.
Never been court tested. Shrinkwrap and clickthrough licences work because people think they work – kind of like a placebo.
It is not clear that contract law applies to these technologies, mainly because it is not clear that there is a “meeting of minds” between the two contracting parties. For example: Let’s say you buy a piece of software, bring it home, start the installation procedure, and come to the clickthrough license. The terms are not acceptable to you. You are not able to renegotiate terms. You are not able to pack up the whole thing and take it back for a refund, either – these days, practically no retailers accept returns of opened software packages. What is a consumer to do?
This is not true as a blanket statement. While some specific shrinkwrap and clickthrough license schemes have been held invalid, they are, as a general proposition, enforceable if corrcetly done.
I’m pressed for time now. I’ll try to get back later today with a cite or two.
The thing about by ‘click here if you agree’ legal contracts is there is absolutely no proof that you were the one doing the clicking. They’re not, despite their intention, electronic signatures.
So, it’s been argued, all you’d have to say in court is that at that moment your cat ran across your desk and stood on your mouse. Thus you haven’t agreed to anything, your cat has.
However, as others have suggested, these things haven’t really been tested in court.
Bricker, when you’re done with your cigar cutter, it’s needed over here.
Futile, it’s true that others have suggested this, they (and you) are wrong. Please don’t post false information in GQ.
Cites: (The first is a link to a law firm site with an article on the issue. It’s a little out of date, as there have been other more recent cases upholding these agreements, but it’s a good summary. The second is a summary of one of those later cases.)
. http://www.lex2k.org/shrinkwrap/ilan.pdf
As these links (as well as others I could provide) show, these agreements have been repeatly considered by courts, and generally upheld. (There are some exceptions.) To say they haven’t been tested is flat-out wrong, and to claim or imply that such agreements are unenforceable is, at best, highly misleading, even if you live in one of the few jurisdictions where courts have struck these down. I’m confident that those few exceptional jurisdictions will soon join the majority. (Note: as I said before, this assumes a well-drafted agreement. Not every attempt at a click-through license will work.)
(While IAAL, I am not your lawyer, and am probably not licensed in your jurisdiction. The above is general information and not legal advice. See a lawyer licensed in your jurisdiction for that.)
The cites you quote discuss whether the person doing the clicking can be bound to that licence. In the US according Electronic Signature Act they can. It has been argued that this legislation is flawed for the following reason.
If I access software installed on a computer by someone else, and was not the one doing the clicking, I see no way of enforcing on me a licensing agreement I’ve not seen and have not agreed to.
My example with the cat was facetious, but it is an often quoted example of the principle. Clicking is not an “electronic signature” as it does not identify a unique person.
If you have a cite that states that a click has been enforced by the court on everyone who there after came in contact with the software I’d be happy to see it. That excludes situations where there are secondary legal arrangements that bind the user’s actions to that of the installer. I don’t have such an arrangement with my cat.
I’d then be happy to argue that such legislation is a bunch of crock, but that’s GD material.
But your assumption is that the person is not bound because there is no “proof” that they were the one clicking on the license. No electronic signature is needed or required if the person admits to installing the software, or there is proof by other means that the person installed or used the software. I know this is a difficult thing to believe, but some people actually do tell the truth when asked under oath “Were you the one who clicked on this license agreement acceptance and installed the software?” And from that standpoint, the terms and conditions of the contract are enforceable.
I know you haven’t argued that they are notunder those conditions, I just think that this point needs recapping.
