Browse wrap

What is a Browse Wrap License?A browse wrap license is part of the web site and the user assents to the contract when the user visits the website. [Ian A. Rambarran, "Are Browse-Wrap Agreements All They Are Wrapped Up to Be?" (November 25,2006). "bepress Legal Series." Working Paper 1885.] This differs from some types of web contracts you may already be familiar with. The first is a shrink wrap license which refers to packages you receive that you have to remove the shrink wrap to get the product. The most common example is installing a CD and before you use the product you must look at the legal disclaimer and then agree to the terms. [ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).] Somewhat like a shrink wrap agreement is a click wrap agreement. A click wrap agreement occurs when you perform a action on a web page and then a disclaimer box appears which you must agree to, to complete the action. Examination of the below cases will give you a better feel of what a browse wrap agreement is and how various courts have viewed them.

Case Law

The court in "Specht" looked at the enforceability of a browse wrap contract entered into on the Netscape website. [Specht v. Netscape Communications Corp., 306 F.3d 17 (2nd Cir.2002).] Users of the site were urged to download free software available on the site by clicking on a tinted button labeled "download". "Id." at 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. "Id." at 23. The plaintiffs not seeing the agreement downloaded the software and then later sued for violations of federal privacy and computer fraud statutes arising from the use of the software. "Id." at 23-25. The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent. "Id." at 29. It 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". "Id." at 29-30. Because the Plaintiff's were not put on notice of these terms they were not bound by them. "Id." at 30-32.

In "Ticketmaster" 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". [Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 525390, at *3 (C.D.Cal. March 27, 2000). ] The court ruled for Defendant in this case but did allow Ticketmaster to replead if there were facts showing that the defendant had knowledge of the terms and impliedly agreed to them.

The Illinois appellate court ruled in favor of a browse wrap agreement in "Hubbert". In this case consumers of Dell products were exposed to a conspicuous hyperlink over a series of pages. The court found that this repeated exposure, and visual effect would put the reasonable person on notice of the "terms and conditions". [Hubbert v. Dell Corp., 835 N.E. 2d 113 (Ill. App. Ct. 2005).]

ummary

A Browse Wrap agreement can be formed by use of the web page, hyperlink, or a small disclaimer on the page. It may only be enforced though if the assents to it. For assent to occur the Browse Wrap agreement should be conspicuous, and the web page can offer further protection by stating that there is and agreement, and where it can be located. As with most agreements formed over the internet Browse Wrap agreements are constantly evolving. With every disputed agreement case law changes and the courts are required to examine specific facts with every case. This leads to various rulings in different jurisdictions, which ensures that more agreements will be disputed and the case law on them will be in constant change.

Examples

[http://www.cptech.org/ecom/ucita/licenses/browsewrap.html]

References