17 May 2011

Click And Gone: 3 Tips How Not To Get Wrapped By An Agreement


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Because of the advent of the Internet, many suppliers will more and more often omit to serve their customers with paper based contracts.

In fact, do you ever remember to have signed a real contract with, say, Facebook or Twitter? Good, those may not be the best examples as they (still) provide their service for free. But, what if you were to enter into a consideration based contract and you were not provided an old-fashioned paper copy, but asked to click through a web form instead?

This is the question I would like to address in this blog article. Particularly, I shall show you how to read, understand and deal with such agreements.

Having got started, let me first explain what a

Click-Wrapped Agreement

is supposed to mean.

Terms such as click-wrap and browse-wrap are being more and more used to describe agreements where customers indicate their acceptance to an agreement as well as their readiness to “execute” said agreement by pressing a button on a website.

Recently I had to examine a click-wrapped non-disclosure agreement (NDA) provided by a technology giant known for its preference for web hosted documents.
I was asked a simple question: “Can I sign it (or have it signed)”?

Though I am technology-focused, I had some initial doubts. Sure, I was familiar with click-wrap licenses appearing on your monitor prior to either the download or the installation of a software as well as what courts had ruled on them. But an NDA? It felt somehow strange.

So, tip #1 – read the terms of the agreement.
Check whether it provides for the

Creation Of A Binding Contract

between two (or more) parties.

Basically, you need an offer, which is accepted with the intention to be legally bound. Should this work by clicking an HTML button?
Hmm, why not?
The act of clicking would be the expression of an unconditional acceptance to the terms of the agreement and hence fully sufficient.

Now that we have proved the valid formation of the contract, we should consider our next point:

Who May Press

the button?

Are you a party to the agreement, you can make the click. But what, if someone else should press it?

Time for tip #2 – check whether the person supposed to press the button is also authorised to do so. This is important because the lack of authorisation is likely to challenge the validity of the contract.

Once having identified the proper “signatory” you need to secure your

Evidence

At this stage, you should distinguish between two things: (1) you need an evidence that a contract has come into existence and (2) you must ensure that the content of the contract shall not subsequently be modified or manipulated.

Hence my tip #3 – make sure you are sent an email copy of the contract you have executed by clicking. The copy should bear the execution’s date and all relevant details such as name, address, signatory name etc.
Print out the copy, sign it personally (or have it personally signed by the signatory) and thereafter file it with your lawyer or, depending on your jurisdiction, with a notary public. This is how you can secure at least a prima facie evidence with respect to (1) and (2) above.

Concluding Thoughts

Click-wrapped or browse-wrapped agreements are driven by the online technologies and are ostensibly easy to handle. You have to know that courts have held them to be enforceable, though merely in single instances. Once you have executed such a click-wrap agreement, you should endeavour to better your stand applying an adequate contract management.

Why? In order not to be gone right after your click!

12 December 2010

Of Media Cats and Pirating Mice


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The cases on copyright infringement where P2P is involved are endless, virtually interminable. Within this variety of cases, there are those concerning unsecured WiFi connections. Some jurisdictions like Germany have already developed an authority, thus providing for a better legal certainty. Others, like England and Wales, appear to be in a process to establish theirs.

About a week ago, the England and Wales Patents County Court, presided by Judge Birss, delivered a judgment in such a case. The claims were brought by ACS:Law.

Anyway, why is this worth mentioning?

Well, this is a law firm currently having to deal with a Solicitors Disciplinary Tribunal as a result of the numerous complaints against their methods of work, in particular the dunning letters that firm is known to send to alleged intellectual property infringers.

But back to facts: claimant, assisted by a specialist data monitoring company, did identify eight individuals and accused them to have uploaded “R 18 restricted” films through peer to peer file sharing networks. The defendants, so the Particulars of Claim, “have operated, at the time of the identified infringement an internet connection router that was not secured either adequately or at all, so as to enable another to carry out an act of copyright infringement of the claimant’s Work via the internet connection of the defendant.” Put it another way, the defendants were all owners of WiFi access points that they had not secured. In claimant’s view, these “defendantswere liable for authorising others to infringe the right owners’ rights in the above films.

Since a copyright case can be brought by the owner of copyright or an exclusive licensee and claimant is neither of these, judge Birss started his judgment expressing some doubts as to claimant’s right to be a claimant in the fist place. The court then admitted to be aware “of no published decision in this country which deals with this issue in the context of copyright infringement.” Nevertheless, the court did not upheld claimant’s plea that “allowing others to infringe” equated “authorising others to infringe”. Not even the authority of the German Federal Supreme Court in the case “Sommer unseres Lebens”, stating that owners of unsecured access points have a duty to safeguard their devices to prevent others from using them without permission, was capable of proving persuasive to His Honour. He mentioned the German case “simply as an illustration of the complex and significant legal issues arising.”

So, what is the moral of the story? It seems that under the jurisdiction of England and Wales and, assumingly, under that of the entire United Kingdom, owners of unsecured WiFi internet connections should not be held responsible for any copyright infringement that third parties might cause over that connections. Judge Birss’ reasoning is in fact a very simple one: section 16 (2) of the Copyright, Designs and Patents Act requires that one, without the licence of the copyright owner, does any of the acts restricted by copyright or authorises others to do them. Falcon vs Famous Players is still an authority in terms of “authorisation” and accordingly, “authorise” means to sanction, countenance or approve, or alternatively to grant or purport to grant to a third person a right to do an act. No doubt, an owner of an unsecured WiFi connection does none of the foregoing.

Frankly, one should take the above cum grano salis since the Patents County Court is just a lower court in the judicial system of England and Wales. Nonetheless, this court’s decision clearly addresses the legal weak point in claims aiming to rather generate earnings than to prevent abuse.

 

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