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Contracts Keyed to Ayres
Christopher Specht v. Netscape Communications Corporation
Citation:
306 F.3d 17.ProfessorMelissa A. Hale
CaseCast™ – "What you need to know"
Facts
The Defendant (Netscape) listed several internet service software products for free download on their site. Plaintiffs (Specht and others) are class-action representatives of a class of consumers who downloaded some of the Defendant’s programs. Consumers seeking to download programs from the Defendant’s site were presented with terms in various forms. For the Communicator program, before the user could download and install, they were presented with a pop-up screen containing the license agreement. Users could not proceed to install the product without scrolling through the terms and selecting “Yes” to signify assent to the terms of the agreement. However, there was another program called SmartDownload that was available for consumers to download. The Plaintiffs were able to download SmartDownload by simply pressing a button on the screen that simply said “Download.” On the page, but often below the screen with the “Download” button, the Defendant noted that downloading the program would constitute acceptance of the licensing agreement. To reach the actual text of the agreement, one had to scroll down below the button, find and click a small hypertext link, which directed to a list of license agreements, then select and click the proper agreement for the product they were downloading. The Plaintiffs all alleged that they did not even scroll down to see that there were additional terms at all.
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Topic Resources
Topic Outline
Formation of Contracts