Marty asks several very interesting questions...
re shrink wrap clauses and I hope to provide an answer as soon as I draft some counterclaims in an answer that is due today. For now, you can ponder his query:
BROWSE-READ: Since Marty is in New York, my guess is that Specht v. Netscape Communications Corp. may apply (online or off) and require click-wrap or shrink wrap in order for the contract to be enforceable. However, if the Times utilized a browse read/browse wrap clause on the front page in place of "all the news fit to print" then there could be an argument to distinguish Specht. In Specht, the Second Circuit held that Internet users could not be bound by a license agreement mandating arbitration when the agreement was buried on the second page of a free software download program. [cite].*
This only begins to answer the questions... which are now more policy based... and I will have to think them over and get back to you soon. In the meantime, if you are really interested in this topic, you can peruse this article for more background on shrink-wrap agreements, copyrights and contract law.
* This is merely a preliminary, pressed for time draft and I reserve the right to modify and expand as I see fit.
"I was mulling the ramifications of the scraping decision in Texas this week as I was standing in my driveway removing my home-delivered NY Times from its blue plastic wrapper, when the thought occurred to me: "Jeez, when is this winter going to end?" Also: if the NY Times printed a shrink-wrap license on this blue pastic bag invoking provisions regarding what I could do with the unprotectable facts in this paper, would a Texas (or some other) court enforce them? Does it have to be a shrink-wrap, can the Times merely print a "Browse Wrap" on its front page? Should a click wrap or browse wrap on a website treated differently than the theoretical one on a front page of a newspaper? Should the Times begin selling even newsstand copies in plastic bags with terms and conditions printed on them?" [The Trademark Blog]SHRINK-WRAP: First off, let's eliminate the shrink wrap and click wrap agreements and assume that Pro-CD will carry the day.
BROWSE-READ: Since Marty is in New York, my guess is that Specht v. Netscape Communications Corp. may apply (online or off) and require click-wrap or shrink wrap in order for the contract to be enforceable. However, if the Times utilized a browse read/browse wrap clause on the front page in place of "all the news fit to print" then there could be an argument to distinguish Specht. In Specht, the Second Circuit held that Internet users could not be bound by a license agreement mandating arbitration when the agreement was buried on the second page of a free software download program. [cite].*
This only begins to answer the questions... which are now more policy based... and I will have to think them over and get back to you soon. In the meantime, if you are really interested in this topic, you can peruse this article for more background on shrink-wrap agreements, copyrights and contract law.
* This is merely a preliminary, pressed for time draft and I reserve the right to modify and expand as I see fit.
