Browsewrap

Last updated

Browsewrap (also browserwrap or 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 or downloadable product. In a browse-wrap agreement, the terms and conditions of use for a website or other downloadable product are posted on the website, typically as a hyperlink at the bottom of the screen. [1] [2] Unlike a clickwrap agreement, where the user must manifest assent to the terms and conditions by clicking on an "I agree" box, a browse-wrap agreement does not require this type of express manifestation of assent. [1] Rather, a web-site user purportedly gives their consent simply by using the product — such as by entering the website or downloading software. [1]

Contents

Browse-wrap agreements, like clickwrap agreements, derive their name by analogy to the "shrink wrap agreements" included inside the sealed packaging of tangible products, where one can not see the agreement until the product has been purchased or used. [3] Courts that have ruled on the issue have held that the validity of a browse-wrap agreement primarily depends on whether a website user has actual or constructive notice of the terms and conditions prior to using the website or other product. [1]

Case law

In 2000, in Ticketmaster v. Tickets.com , 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." [4] 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 2002, in Specht v. Netscape , the Second Circuit Court of Appeals looked at the enforceability of a browse-wrap contract entered into on the Netscape website. [3] Users of the site were urged to download free software available on the site by clicking on a tinted button labeled "download". [3] : 22  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. [3] : 23  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. [3] : 23–25  The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent. [3] : 29  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." [3] : 29–30  Because the plaintiffs were not put on notice of these terms they were not bound by them. [3] : 30–32 

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 In re Zappos.com, Inc., Customer Data Security Breach Litigation , the United States District Court for the District of Nevada ruled against Zappos.com's browsewrap terms of use, describing that its presentation was not prominent, and that no reasonable user would have read the agreement. [7]

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

Related Research Articles

<span class="mw-page-title-main">Netscape Navigator</span> Web browser by Netscape released in 1994

Netscape Navigator is a discontinued proprietary web browser, and the original browser of the Netscape line, from versions 1 to 4.08, and 9.x. It was the flagship product of the Netscape Communications Corp and was the dominant web browser in terms of usage share in the 1990s, but by around 2003 its user base had all but disappeared. This was partly because the Netscape Corporation did not sustain Netscape Navigator's technical innovation in the late 1990s.

An end-user license agreement or EULA is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restrictions which apply to the use of the software.

In the context of the World Wide Web, deep linking is the use of a hyperlink that links to a specific, generally searchable or indexed, piece of web content on a website, rather than the website's home page. The URL contains all the information needed to point to a particular item. Deep linking is different from mobile deep linking, which refers to directly linking to in-app content using a non-HTTP URI.

The first-sale doctrine is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works. In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder puts the products on the market. In the case of patented products, the doctrine allows resale of patented products without any control from the patent holder. The first sale doctrine does not apply to patented processes, which are instead governed by the patent exhaustion doctrine.

<span class="mw-page-title-main">Terms of service</span> Legal agreement for a service

Terms of service are the legal agreements between a service provider and a person who wants to use that service. The person must agree to abide by the terms of service in order to use the offered service. Terms of service can also be merely a disclaimer, especially regarding the use of websites. Vague language and lengthy sentences used in these terms of service have caused concerns about customer privacy and raised public awareness in many ways.

Shrinkwrap contracts or shrinkwrap licenses are boilerplate contracts packaged with products; use of the product is deemed acceptance of the contract.

A clickwrap or clickthrough agreement is a prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy. Privacy policies, terms of service and other user policies, as well as copyright policies commonly employ the clickwrap prompt. Clickwraps are common in signup processes for social media services like Facebook, Twitter or Tumblr, connections to wireless networks operated in corporate spaces, as part of the installation processes of many software packages, and in other circumstances where agreement is sought using digital media. The name "clickwrap" is derived from the use of "shrink wrap contracts" commonly used in boxed software purchases, which "contain a notice that by tearing open the shrinkwrap, the user assents to the software terms enclosed within".

Web scraping, web harvesting, or web data extraction is data scraping used for extracting data from websites. Web scraping software may directly access the World Wide Web using the Hypertext Transfer Protocol or a web browser. While web scraping can be done manually by a software user, the term typically refers to automated processes implemented using a bot or web crawler. It is a form of copying in which specific data is gathered and copied from the web, typically into a central local database or spreadsheet, for later retrieval or analysis.

<i>ProCD, Inc. v. Zeidenberg</i>

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, was a court ruling at the United States Court of Appeals for the Seventh Circuit. The case is a significant precedent on the matter of the applicability of American contract law to new types of shrinkwrap licenses that arose with home computing and the Internet in the 1990s, and whether such licenses are enforceable contracts.

<i>Specht v. Netscape Communications Corp.</i> American legal case

Specht v. Netscape, 306 F.3d 17, is a ruling at the United States Court of Appeals for the Second Circuit regarding the enforceability of clickwrap licenses under contract law. The court held that merely clicking on a download button does not show consent with license terms, if those terms were not conspicuous and if it was not explicit to the consumer that clicking meant agreeing to the license.

Rudder v. Microsoft Corp. [1999] OJ No 3778. is an Ontario Superior Court case that is the leading decision on clickwrap licenses and forum selection clauses in Canada.

<span class="mw-page-title-main">Movieland</span> Former subscription-based movie download service

Movieland, also known as Movieland.com, Moviepass.tv and Popcorn.net, was a subscription-based movie download service that has been the subject of thousands of complaints to the Federal Trade Commission, the Washington State Attorney General's Office, the Better Business Bureau, and other agencies by consumers who said they were held hostage by its repeated pop-up windows and demands for payment, triggered after a free 3-day trial period. Many said they had never even heard of Movieland until they saw their first pop-up. Movieland advertised that the service had "no spyware", and that no personal information would need to be filled out to begin the free trial.

In copyright law, the legal status of hyperlinking and that of framing concern how courts address two different but related Web technologies. In large part, the legal issues concern use of these technologies to create or facilitate public access to proprietary media content — such as portions of commercial websites. When hyperlinking and framing have the effect of distributing, and creating routes for the distribution of content (information) that does not come from the proprietors of the Web pages affected by these practices, the proprietors often seek the aid of courts to suppress the conduct, particularly when the effect of the conduct is to disrupt or circumvent the proprietors' mechanisms for receiving financial compensation.

<i>Register.com v. Verio</i> American legal case

Register.com v. Verio, 356 F.3d 393, was a decision of the United States Court of Appeals for the Second Circuit that addressed several issues relevant to Internet law, such as browse wrap licensing, trespass to servers, and enforcement of the policies of the Internet Corporation for Assigned Names and Numbers (ICANN). The decision upheld the ruling of a lower court which prevented a provider of web development services from automatically harvesting publicly available registration data from a domain name registrar's servers for advertising purposes.

<i>Facebook, Inc. v. Power Ventures, Inc.</i> Lawsuit brought by Facebook in the United States

Facebook, Inc. v. Power Ventures, Inc. is a lawsuit brought by Facebook in the United States District Court for the Northern District of California alleging that Power Ventures Inc., a third-party platform, collected user information from Facebook and displayed it on their own website. Facebook claimed violations of the CAN-SPAM Act, the Computer Fraud and Abuse Act ("CFAA"), and the California Comprehensive Computer Data Access and Fraud Act. According to Facebook, Power Ventures Inc. made copies of Facebook's website during the process of extracting user information. Facebook argued that this process causes both direct and indirect copyright infringement. In addition, Facebook alleged this process constitutes a violation of the Digital Millennium Copyright Act ("DMCA"). Finally, Facebook also asserted claims of both state and federal trademark infringement, as well as a claim under California's Unfair Competition Law ("UCL").

In the middle of 2009 the Federal Trade Commission filed a complaint against Sears Holdings Management Corporation (SHMC) for unfair or deceptive acts or practices affecting commerce. SHMC operates the sears.com and kmart.com retail websites for Sears Holdings Corporation. As part of a marketing effort, some users of sears.com and kmart.com were invited to download an application developed for SHMC that ran in the background on users' computers collecting information on nearly all internet activity. The tracking aspects of the program were only disclosed in legalese in the middle of the End User License Agreement. The FTC found this was insufficient disclosure given consumers expectations and the detailed information being collected. On September 9, 2009 the FTC approved a consent decree with SHMC requiring full disclosure of its activities and destruction of previously obtained information.

Ticketmaster Corp., et al. v. Tickets.Com, Inc. was a 2000 case by the United States District Court for the Central District of California finding that deep linking did not violate the Copyright Act of 1976 because it did not involve direct copying. The decision permitted Tickets.com to place deep links to Ticketmaster.

<i>In re Zappos.com, Inc., Customer Data Security Breach Litigation</i>

In re Zappos.com, Inc., Customer Data Security Breach Litigation, 893 F. Supp. 2d 1058, was a United States District Court for the District of Nevada case in which the Court held that Zappos.com's customers were not held to the browsewrap terms of use because of their obscure nature. The courts also held that the agreement was unenforceable because Zappos had reserved the right to change it at any time without informing the customers. This court decision set a precedent for businesses that use browsewrap agreements and/or include a clause in their agreements that allow them to change the agreements at any time. The decision encouraged conversation on how a business should most fairly display its terms of use and how to avoid unfairness and ambiguity when writing them.

<i>Nguyen v. Barnes & Noble, Inc.</i>

Nguyen v Barnes & Noble, Inc., 763 F.3d 1171, was a United States Court of Appeals for the Ninth Circuit decision in which the Court ruled that Barnes & Noble's 2011 Terms of Use agreement, presented in a browsewrap manner via hyperlinks alone, was not enforceable since it failed to offer users reasonable notice of the terms. The decision set an important precedent on the future design and presentation of online contracts for consumer-facing e-commerce sites.

<i>Luis Arnaud v. Doctors Associates</i>

Luis Arnaud v. Doctors Associates, Inc. d/b/a Subway, Case No. 19-3057-cv, was a case decided by the U.S. Court of Appeals for the Second Circuit that found an arbitration clause did not apply because the terms and conditions were not reasonably conspicuous and clear on a promotional webpage.

References

  1. 1 2 3 4 Kwan v. Clearwire Corp., No. C09-1392JLR, 2012 WL 32380 (W.D. Wash. Jan. 3, 2012).
  2. ↑ Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 366 (E.D.N.Y. 2009).
  3. 1 2 3 4 5 6 7 8 Specht v. Netscape Communications Corp., 306 F.3d 17 (2nd Cir.2002).
  4. ↑ Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 525390, at *3 (C.D.Cal. March 27, 2000).
  5. ↑ Hubbert v. Dell Corp., 835 N.E. 2d 113 (Ill. App. Ct. 2005).
  6. ↑ "Nguyen v. Barnes & Noble Inc., No. 12-56628 (9th Cir. 2014)". Justia Law. Retrieved 2024-02-07.
  7. ↑ Davie, Alexander (31 January 2013). "Court's Invalidation of Zappos.com's Arbitration Provision Offers Lessons for Company Websites". LexisNexis. Retrieved 21 April 2021.
  8. ↑ Karen Berger and Jonathan Bick, New Jersey Law Journal, September 18, 2009.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.