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United States Court of Appeals for the Second Circuit - 306 F.3d 17
Tags: Browsewrap
tl;dr:
A hidden software "browsewrap" agreement does not place a downloader on notice as to additional terms.Video Summary
Case Summary
In Specht v. Netscape Communications Corporation (2002), a group of people (the plaintiffs) sued Netscape for breach of contract, arguing that the company invaded their privacy by tracking their online behavior through a software called SmartDownload. The plaintiffs downloaded this free software from Netscape's website to improve the performance of another program, Netscape Communicator, which was a web browser.
The SmartDownload download page had a button to start the download, and below that, there was a link to the software's license terms. However, this link wasn't easily visible without scrolling down. The license terms included an arbitration clause and a privacy policy allowing Netscape to collect users' online data. Without reading or agreeing to these terms, the plaintiffs downloaded the software and later filed a lawsuit, claiming SmartDownload violated their privacy rights.
Netscape tried to dismiss the case and enforce arbitration based on the license terms, but the district court ruled against them; the court found no contract because the plaintiffs didn't have proper notice of the terms and didn't accept them. This case is significant because it demonstrates the enforceability of arbitration clauses in contracts and the impact of website design on contract formation.
The case highlights the need for an offer, acceptance, and meeting of the minds to form a contract, and it also distinguishes between clickwrap and browsewrap agreements. A clickwrap agreement requires users to click "I agree" or "I accept" before using a service or product, while a browsewrap agreement implies the user's acceptance by using or accessing the service or product without any explicit action.
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The court ruled that downloading free software from Netscape's website did not constitute agreement to the software's license terms, including an arbitration clause. The district court found that the SmartDownload license agreement was not valid because it did not adequately alert users to the existence of the license terms or require unambiguous assent to those terms as a condition of downloading the product. The court concluded that the user plaintiffs did not have reasonable notice of and did not manifest assent to the SmartDownload License Agreement. Therefore, plaintiffs cannot be held to have assented to that agreement with constructive notice of its terms. The court affirmed that the five user plaintiffs cannot be compelled to arbitrate their claims because they did not assent to the SmartDownload license agreement. The court rejected the defendants' argument that plaintiff Specht is bound by the Netscape license agreement based on a hypothetical scenario, as Specht was not a direct beneficiary under SmartDownload's license agreement or any other Netscape agreement. Therefore, the district court's refusal to compel arbitration of his claims was affirmed, and the defendants' motion to compel arbitration and stay court proceedings was denied.
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