Posted by Harlan Messinger on 09/12/06 17:05

Jukka K. Korpela wrote:
> Harlan Messinger <hmessinger.removethis@comcast.net> scripsit:
>
>> Right, so in the analogous web-based situation, someone running a web
>> site ought not to have the initial burden of proving that the user
>> read the EULA.
>
> Don't be ridiculous. If I put a note (in fine print, for example) on my
> page, saying that by reading my page you commit to giving me everything
> you own, that would constitute a contract between us, if your approach
> were correct.

If I asked someone for the time of day, and he handed me a printed form
reading "In return for the time of day from X I agree to pay him one
million dollars", my response would be not to sign it. If I read
something like that on a web page with a link, my response would be not
to click it. You still aren't giving any indication why the web-based
interaction ought not to be binding (or not binding--even with written
contracts, there are bars to validity such as unconscionability or
illegality of the terms) to the same extent that the hard-copy
equivalent is.

> The same would apply if my page contained, before a link,
> a note saying that by following the link you commit to giving me
> everything you own. According to your approach, we could discard even
> the fact that there might be (well, there _would_ be, thanks to search
> engines) _other_ links to the linked page, with no such note before the
> link.

Oh, of *course* the burden is on the person presenting the EULA to
assure that it isn't readily circumvented by the unknowing. But as I
said in my previous message, that's easily done. Again, the existence of
invalid contracts doesn't make all contracts invalid, and likewise for
any particular *form* of contract, such as an on-line EULA. If a EULA is
too vague, or doesn't sufficiently demonstrate a meeting of the minds,
or contains mistakes of fact, etc., etc., etc., it may not be. But that
doesn't mean that no EULA is.

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