Re: manifest assent & which version?

[Carole Richter <Carole.J.Richter.8@nd.edu>]

David,

Speaking as someone without the benefit of legal experience in contract
law I'd like to make two observations. First, I heartily agree that your
point "this actually is tricky when a person is clicking on behalf of an
institution--the publisher must be able to argue that the click should be
attributable to the institution" would seem to be VERY tricky indeed. I
would of course argue that the person(s) responsible for paying the
invoice represent 'the institution.'

But more important, we have a negotiated and signed license with
Silverplatter, because there were a few provisions we wanted to have
changed. I'm curious about your view as to whether this kind of agreement
can be superceded by the fact that users might click through a posted
license agreement on the Web?

I would hope, though it may not be the case, that the institution is
agreeing only to the version that is brought to the attention of a clearly
responsible party. This should be relatively simple to determine, because
most information providers require contact name(s) and information when
subscribing to an electronic resource. How I wish our institutions were so
comfortably staffed that someone could be available to constantly monitor
changes to online licensing in order to determine that no one is agreeing
to a newly posted condition simply by using the provided resource!

Carole Richter
Electronic Resources Coordinator
University of Notre Dame Libraries
(219)631-8405
richter.8@nd.edu


At 04:30 PM 6/22/2000 EDT, you wrote:
>I've been following with interest the conversation on manifest assent and
>have the following observations:
>
>1. UCITA didn't change the law on clickthrough agreements.  Every case
>since 1996 (and there have been about a dozen by my count) has held that
>clickthrough agreements are enforceable.
>
>2. As for acceptance by conduct.  UCITA again has not changed the law
>here. If you read the comments to Section 112 of UCITA
>http://www.law.upenn.edu/bll/ulc/ucita/ucitacom300.htm, it explains that
>it tracks Restatement (Second ) of Contracts sec. 19.  The Restatement,
>which tracks the common law in turn, says that "The manifestation of
>assent may be made wholly or partly by written or spoken words or by other
>acts or by failure to act."  In short, conduct has always been a way that
>contracts are formed.
>
>So, in a simple example, I order a tuna sandwich on rye. But my tuna
>arrives on whole wheat.  I eat it. I can't then claim that there was no
>contract.  I have accepted by conduct.
>
>Of course, not just any conduct will do.  And UCITA clearly provides this.
>
>First, the publisher must call the contract to the attention of the user.
>Second, the user's actions must clearly indicate that the user agreed.
>Third, the actions must be clearly attributable to the user.
>
>So applying these standards to this situation, I believe that a
>clickthrough agreement does bring the contract to the attention of the
>user; the user's clicking does show agreement; and then--this actually is
>tricky when a person is clicking on behalf of an institution--the
>publisher must be able to argue that the click should be attributable to
>the institution.
>
>Conversely, I do agree with those who have said that terms and conditions
>which are hidden on some page are not appropriately brought to the
>attention of the user.  And frankly, I think those publishers may very
>well lose out (as Ticketmaster did in the Tickets.com case in March) in
>trying to enforce those website agreements.
>
>3. Which version of the clickthrough agreement is binding?  A very good
>question.  The ease by which online agreements can be changed is a
>landmine for a publisher, just as it is for the user.  If there's ever a
>challenge, the publisher will need to prove which agreement was clicked.  
>At SilverPlatter, we've dealt with this issue in two ways: First, we date
>the license agreement.  So if you go to our site, you can see that the
>most recent draft is from July 12, 1999. Anyone who clicked after that
>date agreed to that form.
>
>Second, we print out a paper copy of the license agreement from our
>website www.silverplatter.com/license on the first day of each month. It
>has a time & date stamp on the printout.  In that way, if someone clicks
>on an agreement on June 22, and we have a printout from June 1 and July 1,
>and there have been no changes, we can clearly prove which version someone
>agreed to.  If there's been a change, then the worst situation for us is
>that the user could argue that one of the two agreements is applicable
>(and they could try to argue that the one more favorable to them is the
>applicable one.)
>
>
>Hope this helps.
>
>David Mirchin
>Vice President & General Counsel
>SilverPlatter Information, Inc.
>Norwood, MA  02062