(2) The (Evolving) Law of Shrinkwraps
& Clickwraps
(3) Future Problems
Introduction to eContracts
Basic Problems:
Formation
Terms
Enforcement
ShrinkWrap Contracts
(1) ProCD v Zidenberg
contracts and price discrimination
"notice" versus "agreement"
| "money now, terms later" (Why?)
standardization in contracts | consumer expectations
manifestation of assent
(3) Hill v Gateway
look @ the timing of contract formation:
ProCD / Hill
Klocek
Why is this important? Which court has it right?
(3) The Microsoft FrontPage Example:
in relevant part, the "End User License Agreement"
says:
Restrictions
You may not use the Software in connection with any site that
disparages Microsoft, MSN, MSNBC, Expedia, or their products
or services, infringe any intellectual property or other rights
of these parties, violate any state, federal or international
law, or promote racism, hatred or pornography.
ClickWraps
the eBay example:
Has a contract been formed? (Have the parties
agreed?)
What is different about the eBay and the Disney.com
facts? Is that an important distinction?
Specht v Netscape
What kind of contract does the court describe
this as?
What do you think of this statement in the opinion:
Netscape argues that the mere act of downloading
indicates assent. However, downloading is hardly an
unambiguous indication of assent. The primary purpose
of downloading is to obtain a product, not to assent to an
agreement. In contrast, clicking on an icon stating "I
assent" has no meaning or purpose other than to indicate
such assent. Netscape's failure to require users of
SmartDownload to indicate assent to its license as a
precondition to downloading and using its software is
fatal to its argument that a contract has been formed.
Is this consistent with ProCD or Hill
(or Klocek?) Is is consistent with contract law generally?
Consider footnote 13 of the Specht opinion.
Are you convinced by this?
If the Specht "primary purpose"
test becomes establihsed, then what are the implications for online
contracts? Is this good or bad?
Contract Theory
two views of contract:
"contract as consent"
"contract as product"
implication: the future of
entitlements (i.e., privacy, intellectual property, etc.)
Might the future of eContracts bring
back the idea of consent? How?