Are terms-of-service enforceable?

The Electronic Frontier Foundation's Ed Bayley has written an excellent introductory white-paper on whether click-wrap, browse-wrap, and other online terms of service are enforceable:

In other words, it's not merely clicking the "I Agree" button that creates the legal contract. The issue turns on reasonable notice and opportunity to review--whether the placement of the terms and click-button afforded the user a reasonable opportunity to find and read the terms without much effort. In practice, the enforceability of each TOS implementation often falls on a sliding scale, depending on the degree of notice it provides the user. At one end, presentations that require the user, before clicking, to scroll to the bottom of a set of terms, or through an adjacent scroll box, guarantees the entirety of the TOS appears at least once, even if the user chooses to ignore it, and has been held to be enforceable. At the other end, by contrast, if a user must click on a hyperlink, or series of hyperlinks, to view the terms, the significance of clicking "I Agree" as showing assent diminishes, depending on the difficulty in actually finding the terms and whether a reasonable Internet User would have done so. Finally, in addition to the placement of terms, courts also consider the inclusion of conspicuous statements on websites that instruct users to read the TOS and inform them of the consequence of clicking "I Agree."...
Whereas courts have been willing to give clickwraps their blessing, attempts to legally bind users with browsewrap agreements have been more controversial. Unlike clickwrap agreements, browsewraps do not require a user to engage in any affirmative conduct, like clicking on a box, in order to show that they agree to a set of terms. Instead, websites with browsewrap agreements often purport to bind their users by passive conduct, unrelated to the TOS itself, like continuing to use the website or proceeding past its homepage.

The Clicks That Bind: Ways Users "Agree" to Online Terms of Service

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Wardish

Most interesting to me is when an employer requires you to use particular software. Microsoft Office is a good example.

Does that bind the employee to the tos?

Can a company require me to enter legal agreements to third parties?

Various other questions….

Ward
BearsAssaultedByBasil

If the user was required to demonstrate some sort of comprehension of the terms it would really turn the use of eulas on its head. Imagine if companies where required to make their users answer a multiple choice question specific to the terms after each section of the eula. I’m just imagining an apple user sitting there and actually reading through the tens of thousands of words of eula and answering questions about the rights theirs giving away point by point.
gnp

It’ll be interesting to see what workable legal decisions can be implemented, if any. One good example for browsewrap agreements – back when the Communications Decency Act looked like it might get approved, a lot of pr0n sites put up basic entrance pages along the lines of, “If you read further, you declare that you’re 18, and you won’t attack us for any material you might find objectionable.”

Not that many of those “agreements” hold much weight – What if you got to one of the adult pages by following a link that circumvented the entrance page? The CDA luckily was shot down – I forget the exact reasons, but I think one of the judges noted that there was no reliable way to determine viewing age over the Internet.

The side-effect of those entrance pages, a positive thing in my opinion, is that it made it much easier to avoid objectionable material, simply because CDA paranoia led to more courteous labelling practices.
Piers W

As far as I know, if you modify an agreement before signing it, that is what you are agreeing to. So if you write a script that swaps the buttons round you should be fine.
- JohnCJ
  
  What you are referring to is the “mirror image rule”
  http://en.wikipedia.org/wiki/Mirror_image_rule
  
  Cliff notes version: You have to accept an offer on EXACTLY the same terms you are given. If you modify the terms, then accept, then it is not actually an acceptance but is instead a “counter-offer”
  
  If you simply swap Yes and No buttons, you are not modifying the terms. since most terms begin with “by using this software you accept the terms…”, your use of the software becomes the acceptance. A court is likely to see the shenanigans you pulled as further proof you have read and understood the terms.
  
  So ironically, your attempts to get around the EULA would end up strengthening the other side’s argument that there is a valid contract.
Anonymous

Piers- You would need the other party’s agreement to the modified terms. When you buy the software, you get the EULA as an “offer” from the company. Your modified terms would be a “counter offer” to the company, which would probably be ignored. The big idea behind a unilateral contract is that performance (or some manifestation of assent) is enough to create the contract. If you don’t want to accept the terms, don’t use the software like you are accepting the terms.

(Additionally, be careful about making modifications via a script–the DMCA forbids circumvention of an access control device, which probably includes the EULA screen on your instal wizard.)

The bigger question here: do we really want negotiation between parties? Imagine the transaction cost if Microsoft *really* negotiated each license agreement with each person who used MS Word.

Sure, form contracts can be abused. Sure, sometimes the terms are a bit more restrictive than I would like. Sure, there is a huge imbalance of power between the user and the software company. At the end of the day, as long as the EULA is available, it’s about the same as every other form contract. Do people complain this much whenever one rents a car? Get a hotel room? I don’t really understand why people find software license agreements so pernicious.
flytch

No open contract is legally binding… if it says “subject to change without notice” then it’s an open contract!
fr4nk

tl;dr
- IWood
  
  lol
Anonymous

a fine question for 1Ls, just in time finals…
Anonymous

Ensures that the whole eula has been displayed? I think not!

Usually these are provided by a standard scroll bar – clicking or dragging the bar to the end on many systems will jump to the end, or scroll fast enough that many sections of the eula are skipped past without ever being rendered on screen.
Piers W

I wasn’t totally serious, and I’m not a lawyer. I vaguely remember a British court case based on ‘by breaking this seal, you agree to lots and lots of stuff’ involving someone who had not broken the seal.

‘By using this software you accept the terms’ is what you’re agreeing to by clicking a button. If I use somebody elses software on their computer I’m not thereby agreeing to a ‘contract’ I’ve never even seen, even if they’re breaking it by letting me use it.

You may be right that a court would be unsympathetic, if the terms you’re deemed to have agreed to are reasonably standard. One would have to get taken to court to find out.
zog

As a part of my job I often install software to be used by others. I click through the license mumbo jumbo to get the software usable…. so the end user usually has never sighted the agreement that has to be clicked past to get it running.
Daemon

The thought occurs: My mother bought a laptop with windows pre-installed. The computer assembly folks may have agreed to the windows EULA, by opening or clicking something, but she didn’t.

Now, the license is transferable, obviously… but the restrictions that go with it would seem to be fairly hard to legally enforce in such a case, as the end-user will almost certainly never even see the EULA.
Philbert42

I just purchased an HP printer. The installation wizard posted a screen with an “Easy Install” option which offered to automatically and invisibly accept the EULA on my behalf (and incidentally and equally automatically sign me up for a marketing survey and probably a lot of unwanted email). Isn’t this an implicit admission by HP that the EULA is a joke?
JohnCJ

Zog, you might want to be careful about that. As an employee agreeing to a contract on behalf of a company, you might have some issues.
Heartfruit

My five year old can and has clicked a ToS agreement. She is capable of reading early reader books but I’m sure she had no idea what it was she was “agreeing” too. She just knew that if she didn’t click agree she wasn’t going to be able to play her game.