click-wrap is legally supportable?

[Rod Dixon, J.D., LL.M.]

Some of your hypotheticals are interesting, but I think you are missing the
point. We are discussing licenses that are presumably issued by licensors.
In that respect, it is in the interest of the licensor to follow the steps
that might ensure that his or her license is enforceable. One of the steps
relevant for the licensor is contract formation or for the licensee we might
simply say mutual assent, which is where a mouse click might help.

The questions Russ poses seem to be of the type: well, what about the
licensee? Certainly, the interests of the licensor are not always consonant
with those of the licensee, but this isn't a very compelling soapbox issue
in my opinion. In particular, many on this list seem to have no aversion to
the warranty disclaimer, which, if enforceable in a particular state, is not
exactly user-friendly.  Quite honestly, in the balance, I think that the
clickwrap issue favors end-users more so (or is less one-sided) than a
warranty disclaimer.  Mutual assent is meant to ensure as best as practical
that folks know what they are agreeing to be bound by, and in that light
serves the interests of both parties...whereas the warranty disclaimer
serves the interest of the licensor, violates consumer protection
principles, but has the effect in open source of offering a trade of
interests.



> I wonder if you are deemed to have accepted a click-wrap license
> if software requiring a click-wrap appears on your machine?  Have you
> agreed to every license which was clicked past on your machine?  What
> if an employee with no authority to bind the company to a contract
> clicked?  What if someone who has no ability to enter into a contract
> clicked (e.g. your kid)?  What if a repairman clicked?  Or the cable
> guy clicked?  In the various cases which are claimed as precedent, did
> the judge get asked these hard questions?
> -russ

And, what about the envelopes left at your home from a stranger in a uniform
that get tossed in the trash, unread. Might any of those items be binding?
Upon who? Why?  The point is I do not think we need to exploit circumstances
involving mailmen, the cableguys, or the repairwomen to properly analyze how
mutual assent applies to open source website licenses. A range of mechanisms
might be appropriate to ensure mutual assent, including instances where a
click is unnecessary.

Rod

Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod at cyberspaces.org
http://www.cyberspaces.org/dixon/
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132




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