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Posted by Harlan Messinger on 09/13/06 14:15
Andy Mabbett wrote:
> In message <4mntg2F703cnU1@individual.net>, Harlan Messinger
> <hmessinger.removethis@comcast.net> writes
>
>> 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.
>
> NO, but you can prove that he's the one who signed it.
>
> You do that with an EULA, how, exactly?
If the EULA accompanies a purchase made with a credit card, then the
evidence of the person's identity is as strong as it ever is in an
on-line credit card purchase. If the user is required to respond to an
e-mail or to return to the website to enter a code that was provided via
e-mail, then ownership of the e-mail address that the user supplied for
this purpose would, I would think, suffice as prima facie (though
rebuttable) evidence of his identity. If either of the previous
conditions held in a previous visit to the site, at the time the user
created a site membership with a user name and password, and the user
has now logged in with that user name and password, that could again be
construed as prima facie evidence of his identity.
If the EULA mechanism is not structured in such a way as to provide
sufficient assurance of the user's identity, then naturally the user
could challenge any later claim that he'd accepted it (assuming, of
course, that he hadn't).
Identities can be stolen, of course, but if that fact were sufficient to
make all on-line EULAs inherently nonbinding outright, wouldn't the same
hold for all other on-line transactions? And then you could make the
same case for any non-in-person transaction where the person agreeing to
terms doesn't provide proof of identity.
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