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Total entries in this category: Published On: May 18, 2008 10:34 PM |
Click wrap (or browse wrap) agreementsAs reported by Evan Brown (Chicago
Illinois attorney), a federal district court (Northern District of California)
has held a website scraper subject to the website's terms of use.
So far as I am aware, we don't have any
cases yet on whether or not those terms and conditions buried way down the
bottom of your web page (or more often on the end of a link found at the bottom
of the page) are actually
enforceable.
One might think that they need to be expressly brought to the "bound" party's attention to be binding, but pretty much everyone (all right, that may just be geek lawyers and the marketing types we live to frustrate) knows they are there "somewhere". That may mean that only particularly surprising terms need to be explicitly drawn to the user's attention. Of course, lots of the boiler plate terms and conditions written by the lawyers to frustrate the marketing types must necessarily fail as they usually prohibit everything including viewing the page to find out what the terms are. Bearing in mind that US law is not necessarily the same as Australian law, the interesting point about Cairo v CrossMedia (1 April 2005) then is that Cairo, the webscraper, did not expressly agree to the so-called terms of use. However, according to Mr Brown's report, the court imputed knowledge of the terms and conditions to it on the basis of its "repeated and automated use" of CrossMedia's website and, in doing so, distinguished Specht v Netscape 306 F 3d 17 (2d Cir 2002) where terms that user had to scroll down the screen to find were not binding. Mr Brown's report can be found here . Posted: Friday - 08 April, 2005 at 10:08 AM | |