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Contracts Keyed to Farnsworth
Specht v. Netscape Communications Corp.
Citation:306 F.3d 17
ProfessorMelissa A. Hale
CaseCast™ – "What you need to know"
Netscape’s (defendant) website offered various software programs, including “Communicator” and “SmartDownload,” for download. Spect (plaintiff) and other Netscape users downloaded both programs. To initiate installation of “Communicator,” the users were automatically shown a scrollable text of the program’s license agreement. The users had to click a “Yes” button in order to install the “Communicator” program, which indicated that they had accepted all of the license terms. The terms of the license agreement specified that all disputes relating to the program were subject to binding arbitration in California. The installation of “SmartDownload,” however, entailed no clickwrap presentation. There, users encountered no information about the existence of license terms once they clicked the “Download” button for the “SmartDownload” software. If they scrolled down the page, then they would have seen “SmartDownload’s” license terms. Specht and other Netscape users brought suit, alleging that the programs were used for electronic surveillance of their online activities. At trial, Netscape moved to compel arbitration.
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