Page 2 of 2 FirstFirst 1 2
Results 11 to 16 of 16
  1. #11
    Join Date
    Sep 2013
    Posts
    833

    Default Re: "Please Read" in Software Terms of Use

    Quote Quoting jk
    View Post
    I didn't say simpler was required. I said requiring the use to check a box is simpler. Not sure where you got I said it was a requirement. It's the smarter method but still not required.
    Smarter for who? The ones making the TOS tend to want to hide the ball. That's why you so often see it in that little box you scroll through and why they are written in such legalese. The businesses have long ago determined they do not really want to inform the customer about what he is or is not getting and what is being given up.

  2. #12
    Join Date
    Jan 2006
    Posts
    38,530

    Default Re: "Please Read" in Software Terms of Use

    Smarter for who? The ones making the TOS tend to want to hide the ball.
    really? That is what risks the enforceability of the TOS.

    That's why you so often see it in that little box you scroll through and why they are written in such legalese.
    "legalese" is generally the most precise what to write a legal document. It's more precise when writing legal documents than lay speak.

    The businesses have long ago determined they do not really want to inform the customer about what he is or is not getting and what is being given up.
    maybe you need to think about who you do business with.

  3. #13
    Join Date
    Nov 2013
    Posts
    6,207

    Default Re: "Please Read" in Software Terms of Use

    Quote Quoting jk
    View Post
    You say you are disagreeing with me and then turn around and say what I did: if you click the box, the terms are binding.


    when you speak of the browse wrap affirmation: the problem with that and why it is not clearly enforceable is due to the fact there is no proof the tos was read or agreed to.

    Then you can get into whether it is obvious enough or there is some other means to prove the user did agree to the terms in whatever action they took.

    Much simpler to require them to check a box. That way it shows the user had the opportunity to read the tos and either read them or didn't but acknowledges they agree to be bound by them regardless.
    What I was disagreeing with is your statement that absent a click-wrap the TOS or license is not enforceable. The terms are enforceable if they are clearly visible by link or reference like "read the license before you download."

    According to the developing case law, no further proof is necessary. There is a presumption that you read and agree, by virtue of your actions, such as registering (if you are asked to read the TOS) on a forum or downloading software.

    I certainly agree that a click-wrap is preferred.

  4. #14
    Join Date
    Sep 2013
    Posts
    833

    Default Re: "Please Read" in Software Terms of Use

    Quote Quoting jk
    View Post

    maybe you need to think about who you do business with.
    Have you read Google's TOS? Have you bought food from General Mills? Do you have a phone? My, you are naive. You have no conception of your legal interactions through the day.

  5. #15
    Join Date
    Jan 2006
    Posts
    38,530

    Default Re: "Please Read" in Software Terms of Use

    budwad;801069]What I was disagreeing with is your statement that absent a click-wrap the TOS or license is not enforceable. The terms are enforceable if they are clearly visible by link or reference like "read the license before you download."

    According to the developing case law, no further proof is necessary. There is a presumption that you read and agree, by virtue of your actions, such as registering (if you are asked to read the TOS) on a forum or downloading software.

    well, I'll have to start looking. Here is the first I came up with (and yes, it is 14 years old so there may be much beyond it)

    http://scholar.google.com/scholar_ca...s_sdt=80000003

    Moreover, unlike the shrinkwrap license held enforceable in ProCD v. Zeidenberg,86 F.3d 1447 (7th Cir.1996), the license agreement at issue is a browse wraplicense. A shrinkwrap license appears on the screen when the CD or diskette is inserted and does not let the consumer proceed without indicating acceptance. By contrast, a browse wrap license is part of the web site and the user assents to the contract when the user visits the web site. No reported cases have ruled on the enforceability of a browse wrap license. However, the Seventh Circuit's opinion inProCD provides some policy considerations that are helpful to the court.
    something much newer:


    http://scholar.google.com/scholar_ca...s_sdt=80000003
    Several courts have enforced browsewrap agreements. See, e.g., Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F.Supp.2d 1096, 1107 (C.D.Cal.2007)(plaintiff was "highly likely to succeed in showing that Defendant received notice of the Terms of Use and assented to them by actually using the website" where site displayed a warning that "Use of this website is subject to express Terms of Use" and "[t]he underlined phrase `Terms of Use' is a hyperlink to the full Terms of Use"); Sw. Airlines Co. v. BoardFirst, L.L.C., No. 3:06-CV-0891-B, 2007 WL 4823761, at *4 (N.D.Tex. Sept. 12, 2007); Cairo, Inc. v. Crossmedia Servs., Inc.,No. C 04-04825, 2005 WL 766610, at *5 (N.D.Cal. Apr. 1, 2005); Ticketmaster Corp. v. Tickets.com, Inc., No. CV 997654, 2003 WL 21406289, at *2 (C.D.Cal. Mar. 7, 2003). Cf. Pollstar v. Gigmania, Ltd., 170 F.Supp.2d 974, 982 (E.D.Cal.2000) (noting that "the browser wrap license agreement may be arguably valid and enforceable.").
    However, several of these cases appear to have turned on the user's constructive knowledge of the hyperlinked terms. See Sw. Airlines Co., 2007 WL 4823761, at *4; Cairo, Inc., 2005 WL 766610, at *5. Indeed, "[m]ost courts which have considered the issue ... have held that in order to state a plausible claim for relief based upon a browsewrap agreement, the website user must have had actual or constructive knowledge of the site's terms and conditions, and have manifested assent to them." Cvent, Inc. v. Eventbrite, Inc., 739 F.Supp.2d 927, 937-38 (E.D.Va.2010). And at least one court has declined to enforce terms and conditions that "only appear[ed] on [a] website via a link buried at the bottom of the first page" where users "are not required to click on that link, nor are they required to read or assent to the Terms of Use in order to use the website or access any of its content." Id.
    Moreover, the cases in which courts have enforced browsewrap agreements have involved users who are businesses rather than, as in Specht and in this case, consumers. Cf. Lemley, Terms of Use, 91 Minn. L.Rev. 459, 472 (2006) ("An examination of the cases that have considered browsewraps in the last five years demonstrates that the courts have been willing to enforce terms of use against corporations, but have not been willing to do so against individuals."). Indeed, one prominent commentator has hypothesized that "[c]ourts may be willing to overlook the utter absence of assent only when there are reasons to believe that the [allegedly assenting party] is aware of the [other party's] terms." Id. at 477. And based on the reasonable supposition that such "awareness may be more likely with corporations than individuals, perhaps because corporations are repeat players," that commentator has argued "that if courts enforce browsewraps at all, enforcement should be limited to the context in which it has so far occurred — against sophisticated commercial entities who are repeat players." Id. at 464, 477.
    while it appears, in this particular case it was ruled in favor of accepting the browse wrap, it still does not make it so clear it is accepted without question.

  6. #16
    Join Date
    Sep 2012
    Posts
    1,988

    Default Re: "Please Read" in Software Terms of Use

    Open source licenses are concerned with redistribution, particularly redistribution of modified software. You should read the licenses for all your software however Canonical is not going to send the BSA to kick in your door

    1. Sponsored Links
       

Page 2 of 2 FirstFirst 1 2

Similar Threads

  1. Enforcing Custody Orders: Order "Read into the Record" but Not Yet Signed by the Judge
    By SuperPop in forum Child Custody, Support and Visitation
    Replies: 5
    Last Post: 12-17-2013, 01:21 PM
  2. Establishing an Order: What Constitutes a "Extended Period of Time" in Terms of Abandonment
    By dos-huevos in forum Child Custody, Support and Visitation
    Replies: 7
    Last Post: 04-03-2013, 06:12 PM
  3. Copyright Law: What is "Limited License" in Software and Other Licensing Terms
    By vitaly in forum Intellectual Property
    Replies: 1
    Last Post: 08-25-2010, 05:41 PM
  4. Police Conduct: Was Not Read My Miranda Rights, Felt Violated During a "Frisk" While I Was in Custody
    By sharifasnoble in forum Police Investigations
    Replies: 8
    Last Post: 02-16-2010, 09:38 PM
  5. Banking: "Opt Out" of Credit Card Change in Terms, Bank is Not Abiding by New Terms
    By whenitrainsitpours in forum Personal Finance And Investment Law
    Replies: 4
    Last Post: 07-03-2009, 08:53 AM
 
 
Sponsored Links

Legal Help, Information and Resources