Re: manifest assent & which version?

[Ivy Lee Anderson <ivy_anderson@harvard.edu>]

I have two comments on the manifest assent discussion:

At 07:27 PM 6/22/00 -0400, Carole Richter wrote:

>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can be superceded by the fact that users might click through a posted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?

We include a provision in our negotiated licenses indicating that the
license expressly supersedes any click-through or other online version
posted at the provider's website.  This removes the ambiguity between what
is negotiated and what is presented online to a user.   It has not proved
controversial with vendors;  I believe we are all working in good faith
when we negotiate an institutional agreement.  But eliminating the legal
ambiguity is a good thing.

>At 04:30 PM 6/22/2000 EDT, David Mirchin wrote:
>>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.

	If I recall correctly, UCITA does discuss what would constitute
sufficient notice in the case of an online agreement of manifest assent.  
The principle doesn't require a click-through, but it does require some
form of notice to the user or other contracting party.  This can take the
relatively subtle form of "Your use of this product constitutes acceptance
of the following <hyperlink>Terms and Conditions</hyperlink> - i.e., the
terms can be buried in a link that the user must elect to follow - but,
the basic notice must be given in a place that the contracting party will
encounter in the normal course of things.  I don't think a license buried
in an obscure location on a provider's website would meet this criterion
unless there were an explicit link to it at an appropriate entry point.

On the other hand, there may be some concern over whether this must be at
point of order or only at point of use.  That is, one could order
something online without such notice and then discover the terms of use
when one first attempts to use the product.  This would be the instance
most analagous to shrink-wrap in the physical world.  I would be
interested in legal opinions on this.

Ivy Anderson
Coordinator for Digital Acquisitions
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