Browsewrap: A Unique Solution to the Slippery Slope of the Clickwrap Conundrum

Abstract

Large changes to online contracts have been underway since Shrinkwrap and Clickwrap licensing became hallmarks of digital licensing. Shrinkwrap and Clickwrap have changed how consumers enter into contracts by streamlining traditional notions of offer and acceptance. The deficiencies of Clickwrap and Shrinkwrap licenses are well documented, yet their validity is nearly universally upheld in courts. Another revolution in online contracts is taking place and no one is noticing. Today, a majority of Internet users enter into binding contracts online by merely browsing webpages. Browsewrap now stands poised to build upon the legal success of online licensing and become as accepted as Clickwrap in American courts. Several solutions to the abuses of End-User License Agreements (EULAs) such as Shrinkwrap and Clickwrap contracts have been proposed through model state regulation and the common law. However, these solutions cannot defend against the encroachment of Browsewrap. This Article argues that an unlikely solution is possible through the use of federal regulation in the form of copyright law.