Re: manifest assent & which version?

["David Mirchin" <DMirchin@Silverplatter.com>]

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


Kimberly Parker wrote:

> Just one thing I should clarify.  I was specifically referring to licenses
> that don't require a click and accept type action when I queried about
> licenses of manifest assent.
>
> Of the examples Linda provides below -- The Wiley one is definitely a
> click-through license.  I didn't double-check the others.
>
> Of course, click-throughs are similar, and may contain the same type of
> problems.  How do you freeze the click-through license at the moment you
> agreed to it?  Yes, you could print it, copy it offline, etc.  But if
> changes were later made to the click-through text, what's LEGALLY
> recording the moment in time and version of the license you read and
> agreed to?
>
> --Kimberly Parker