Survey of the Law of Cyberspace: Electronic Contracting Cases 2008-2009

Abstract

In this survey, we review electronic contracting cases decided between June 15, 2008 and June 15, 2009. During that period we found that there was not much action on the formation by click-wrap and browse-wrap front. We have previously observed that the law of electronic contracts has matured, and the fact that there have not been any decisions on whether click-wrap and browse-wrap are effective ways of forming contracts reflects that observation. This year brought us three modification cases, two cases in which a party alleged that it was not bound to the offered terms because an unauthorized party agreed to the terms, one case in which formation by the exchange of e-mail messages was at issue, and one in which plaintiffs argued, unsuccessfully, that they were third-party beneficiaries of the Craigslist Terms of Use. Finally, our last case addresses a question not unique to, but common in, electronic contracting cases: does Article 2 of the Uniform Commercial Code govern the transfer of software?

Keywords: contracts, electronic contracts, cyberspace, terms of use