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Posted by Harlan Messinger on 09/12/06 14:11
Jukka K. Korpela wrote:
> Stephen Poley <sbpoleySpicedHamTrap@xs4all.nl> scripsit:
>
>> I went to a seminar on the law relating to software in the
>> Netherlands a few years ago. The speaker on this matter said it had
>> not been tested before the courts, and it was uncertain whether a
>> click-through agreement would stand up in the Netherlands.
>
> Hardly anyone _wants_ to test it in a court. There would be a lot of
> expenses to lose and little if anything to win. But this still isn't an
> HTML issue.
>
> Well, I do have an ObHTML here:
>
> Given any normal www form or link that is claimed to constitute a
> contract when clicked on, based on stuff on the page where it resides,
> one can construct a link that leads to the same page and does not
> involve any kind of reference to any commitment or contract. (If the
> form uses POST method, you need either a little bit of JavaScript or a
> simple server-side piece of software.) So how could you prove that the
> user who enters the page has actually even seen your "click-through
> agreement"? Right, you don't.
>
With a contract printed on paper, you also can't prove that the person
who signs it has read it, even if his signature is under a printed
statement reading, "I affirm that I have read this contract." So? The
contract is still binding.
If someone encountering a EULA chooses to engineer a hack to get around
reading it, what would lead you to expect a judge to give him any more
sympathy than would be given to a person who signed a hard-copy contract
and then later claimed not to be bound by it because he hadn't read it?
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