Specht v. Netscape Communications Corp.
306 F.3d 17 (2d Cir. 2002)
License terms hidden below the download button that nobody had to see
- In one lineEn una línea
- Downloading software from a page whose license terms were visible only by scrolling below the button does not manifest assent to those terms.Descargar software desde una página cuyos términos de licencia solo se veían al desplazarse debajo del botón no manifiesta asentimiento a esos términos.
- RuleRegla
- Assent to online terms requires reasonable notice of the terms and an unambiguous manifestation of assent; a reasonably prudent user who was not shown the terms before clicking did not agree to them.
- Why this case is herePor qué está aquí este caso
- From the professor's Online Contracts handout (Sept. 24): clickwrap, shrinkwrap and browsewrap. A user who downloads software without reasonable notice of license terms has not assented to them, so the arbitration clause did not bind.
- Procedural posturePostura procesal
- Software company moved to compel arbitration under license terms on its download page; the district court denied the motion and the Second Circuit affirmed.
Facts
Users downloaded a free plug-in from a page with a download button; the license terms, including arbitration, appeared only if the user scrolled further down, and nothing required the user to see or click them. The users later sued over the software’s data collection; the company invoked the arbitration clause.
Procedural posture
Motion to compel arbitration denied; affirmed.
Issue
Whether the users assented to license terms they were not required to view.
Holding
No. A reasonably prudent user would not have known of the terms, so the click on download was not assent to them.
Reasoning
Mutual assent online is judged by the same objective standard as on paper: the offeror must present the terms so that a reasonable user knows a bargain is proposed, and the user must do something that unambiguously signals agreement (a clickwrap I agree button meets both).
Rule (own words)
If the terms are below the fold and the button says only download, there is no contract on those terms.
Say the answer out loud before revealing each part. Rate yourself honestly; the case comes back sooner when you miss.Di la respuesta en voz alta antes de revelar cada parte. Califícate con honestidad; el caso vuelve antes si fallas.
Panic kit: “Could you repeat the question, please?” · “Let me make sure I have the facts right: …” · “I'm not certain, but I'd argue … because …”Kit de pánico: “Could you repeat the question, please?” · “Let me make sure I have the facts right: …” · “I'm not certain, but I'd argue … because …”