Shrink-Wrap, Click-Wrap, Now Browse-Wrap

Information Today, Vol. 21, No. 3, p. 15, March 2004

3 Pages Posted: 13 Aug 2010

Date Written: March 2004

Abstract

“Browse-wrap” contracts are the latest development in the line of electronic resource use agreements that began with shrink-wrap and click-wrap licenses. These types of agreements seek to define the intended uses of the electronic resource, in this case a Website. The Martindale-Hubble Lawyer Locator Website (www.martindale.com), for example, has 20 separate terms as part of its Terms of Use, including limitations on commercial use, disclaimers, conditions for linking to the site, and governing law; and considers any use of the Website as agreement to the terms. A link to the Terms of Use page is part of a fixed banner on every page on the Website.

A common trait of these licenses is that they are extremely unilateral–presented as a fixed agreement that you accept or decline in total. Browse-wrap agreements, however, are different in that they do not require an affirmative act–such as clicking an “I agree” button–on the part of the user. Nor are you necessarily directed to or required to access the page containing the text of the agreement. Agreement is presumed by the act of using the Website. The legal question that courts and commentators are struggling with is whether browse-wrap agreements can be enforceable contracts.

Keywords: contract law, unilateral contracts, fixed banners, licensing, enforceability, browse-wrap contracts, electronic resources, use agreements, terms of use

Suggested Citation

Pike, George H., Shrink-Wrap, Click-Wrap, Now Browse-Wrap (March 2004). Information Today, Vol. 21, No. 3, p. 15, March 2004. Available at SSRN: https://ssrn.com/abstract=1657093

George H. Pike (Contact Author)

Northwestern University Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-0295 (Phone)
312-503-9230 (Fax)

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