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The New Price to Play: Are Passive Online Media Users Bound by Terms of Use?

15 Communication Law and Policy 405 (2010)

Posted: 16 Jan 2011 Last revised: 12 Aug 2017

Woodrow Hartzog

Northeastern University School of Law and College of Computer and Information Science; Stanford Law School Center for Internet and Society

Date Written: October 4, 2010

Abstract

When individuals turn on the television, listen to the radio, or read newspapers, they are not forming contractual relationships. Yet almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users” - online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.

Keywords: Contract, Terms of Use, Online Agreement

Suggested Citation

Hartzog, Woodrow, The New Price to Play: Are Passive Online Media Users Bound by Terms of Use? (October 4, 2010). 15 Communication Law and Policy 405 (2010). Available at SSRN: https://ssrn.com/abstract=1741281

Woodrow Hartzog (Contact Author)

Northeastern University School of Law and College of Computer and Information Science ( email )

416 Huntington Avenue
Boston, MA 02115
United States

HOME PAGE: http://https://www.northeastern.edu/law/faculty/directory/hartzog.html

Stanford Law School Center for Internet and Society ( email )

Palo Alto, CA
United States

HOME PAGE: http://cyberlaw.stanford.edu/profile/woodrow-hartzog

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