In our last message, we saw that what the law calls "adhesion contracts" are generally enforceable, as long as the method of acceptance is reasonably clearly specified by the offeror. But returning to our hypothetical web contract, once you've clicked the Subscribe button on the screen and thereby accepted XYZ's offer, have you agreed to abide by all of the terms of the Subscriber's Contract? What if it contains the following paragraph (which, of course, you know nothing about, having neglected to read it):
"By subscribing to XYZNews, you agree to pay each invoice upon receipt; XYZ will charge interest at a rate of 0.5% per month for unpaid bills. You also agree not to reproduce or disseminate any of the information contained therein in any form. You further agree that XYZ, Inc. may discontinue your subscription at any time and for any reason."
Have you obligated yourself to pay the interest charge if you fail to pay in the time specified? Have you breached the contract if you print out a copy of the newsletter so you can read it on the bus? Or cut a couple of sentences from one of the newsletters, copy it into an e-mail message, and send that to a friend?
This, it turns out, is a very difficult question, one that is currently quite unsettled in the law. As a GENERAL rule, as long as the terms of the contract were available to you prior to your acceptance of the offer, and so long as they are not truly "unreasonable," you are bound by those terms. So the interest charge in XYZ's contract can almost certainly be enforced against you (if you don't pay your bills on time).
But the term regarding the reproduction of information is a different question (at least in the minds of some courts that have looked at this question and many lawyers and law professors). Some argue as follows:
There is, however, a very strong argument on the other side. Most rights -- even constitutional rights -- can be waived, as long as the waiver is voluntary and informed. Your action here constitutes a waiver of your statutory fair use right; you were informed (insofar as XYZ made the terms of this contract available to you for inspection) and you chose to go ahead with the deal anyway.
1. Congress, through the Copyright Act, has given you a "right" to reproduce information in certain circumstances by declaring that certain reproductions are allowable as "Fair Use." (We talked about this idea many months ago when we looked at copyright law.) 2. The actions you have taken -- printing a copy for personal use, copying a very small portion of the newsletter and disseminating it to one person -- would very likely fall within the Fair Use doctrine. 3. Contract law cannot override the Copyright Act and prohibit something that you have a statutory right to do (the copying that you've done here).
A tough call -- one that the courts have not been called upon to make very often, and one that they have not made consistently when they have looked at it. Most recently, one court -- the 7th Circuit Court of Appeals -- looked at this question and took the latter view (that the contract could be enforced). In that case (ProCD v. Zeidenberg, available at http://www.law.emory.edu/7circuit/june96/96-1139.html), Mr. Zeidenberg bought a copy of a CD-ROM compilation of telephone numbers and proceeded to place it on the Internet, even though the "shrinkwrap" license said that he could not do so. Zeidenberg argued that he could do what he did because the Copyright Act makes "facts" of this kind uncopyrightable and, while the court agreed with that point, it found that he had agreed, through the shrinkwrap license, not to exercise his right under the Copyright Act.
This case has generated a good deal of commentary, pro and con, and, in our view, this is going to be a BIG issue in the electronic world, and one that courts may be struggling with for some time to come.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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