In recent years both State and Federal courts have shown their willingness to uphold
click-wrap agreements. These contracts offer no negotiation
room for the end-user, and, in the case of software that is non-returnable once opened, cannot
even be read until after the user has paid for the software. Nevertheless, behavior which
suggests an agreement to purchase software and an awareness that some sort of contract will
be included in the package is sufficient to warrant enforcement of the click-wraps therein,
based on UCC sections 2-204 and the ability to add additional terms to the contract on explicit
or implicit consent of the purchaser, UCC 2-207 (the consent here is clicking the "I agree"
button). Click-wrap agreements are common, popular, and
frequently enforced. Alternatives to the click-wrap seem to be as common as snowballs in
hell. Adhesion contracts may not seem fair, but they are a valuable and efficient tool in a
society where human beings are further and further removed from point of sale transactions.
However, it is certainly possible to abuse this tool. Software companies are burying powerful
clauses deep within these agreements, seeking to gain contractual rights to limit uses or gain
powers that no end-user would willingly agree to. A recent example is Microsoft Corporation's
inclusion in a click-wrap agreement of a permission clause to search the end-user's hard drive
and delete any programs or files Microsoft deems to be objectionable. The clause was placed
in the click-wrap contract to a security patch for Windows Media Player last fall.
How likely is the end-user to read this clause and thus be aware of its highly unusual nature?
The odds are remote. For one thing, these agreements tend to be so long and convoluted that
it might well take more time to read them than the user saves from using the software in the
first place. And in the case of this particular clause in the Microsoft contract, it actually
was not even in the contract itself - a hyperlink was included in the contract that linked to
a web page containing additional terms to which the user was agreeing. The user could not
realize she was waiving a right to privacy of her hard drive's contents without following that link.
I know what you are thinking, and you are probably right. This particular adhesion contract seems
to venture into the unconscionable. It would be hard to argue that the user had an expectation of
giving Microsoft the right to search her hard drive and delete material; nor was the clause
conspicuously visible - rather it could not be much more invisible unless it were non-existent.
In addition, public policy generally frowns on unwarranted invasions of consumer privacy. In
situations where click-wraps were deemed to be unconscionable, courts have declined to enforce
them. In short, it seems possible that this clause would not be upheld in court.
What, then, might be Microsoft's purpose in including this clause if not to get your permission
to become Big Brother? One can argue that this clause is an attempt to show content providers
that Microsoft is committed to protecting their interests in their copyrighted works. Media
Player is the centerpiece of Microsoft's video and audio delivery platform for the internet,
and Microsoft needs the backing of organizations such as the Motion Picture Association of
America and the Recording Industry Association of America in order to maintain the viability
of its software. Yet those organizations are engaged in a desperate struggle with Microsoft's
end-users over piracy of their works - and they are losing it. Given this situation, does
the clause still seem unconscionable?
The MPAA and the RIAA would likely be keen to see Microsoft put some teeth into that click-wrap
clause. Privacy rights proponents would like to see it challenged in court. To date the clause
has not been litigated, but it seems like only a matter of time before either this one or a
similar one is taken to court.
For additional reading:
http://www.phillipsnizer.com/int-click.htm
http://www.phillipsnizer.com/int-contract.htm
http://www.becker-poliakoff.com/publications/article_archive/click_wrap.htm (includes detailed directions on how to create an enforceable click-wrap agreement)
http://www.idg.net.nz/webhome.nsf/UNID/CC256A87000C5F2FCC256834007ACC1A!opendocument
