Information Law and Policy Blog

Wikipedia’s entry on clickwrap entry notes:

“Classically, such a take-it-or-leave-it contract was described as a “contract of adhesion, which is a contract that lacks bargaining power, forcing one party to be favored over the other”.”

In spite of this, as we’ve seen in ProCD vs. Zeidenberg, Aetna vs. Jeppsen, and Mortenson vs. Timberline, Clickwrap has usually succeeded in imposing enforceable contracts, except in extreme cases (e.g.: Williams vs. AOL).

I am tempted to argue the “practical impossibility” (used in a different context in Cardozo vs. Ellie’s Books) of reading these on behalf of all end users.

how eulas should be used

but in the meantime some recommend these guidelines for use:

1. The user must have adequate notice that the proposed terms exist;
2. The user must have a meaningful opportunity to review the terms;
3. The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and
4. The user must, in fact, take that action.