[nzlug] Re: M$ is targeting YOU

[Simon Bridge]

On Thu, 2007-03-22 at 15:31 +1200, Nick Rout wrote:

> Well i was only talking about the irrelevance of actual intent when you
> sign or agree to something. If you agree to something so as to legally
> bind yourself there is no point in saying "I never really intended to be
> bound, and I had my fingers crossed in my pocket". The test is objective,
> would a reasonable bystander conclude from your observable actions that
> you intended to be bound - the answer is "yes".
> 
Interesting argument - I've always loved this one.
I first came across it arguing with a lawyer and associate it with
lawyers :) - in my case, I was asserting (not entirely serious) that
Macdonalds was not food. To whit, counter-argument came to put a
reasonable person in a room with a big mac and a pile of dirt and ask
them to eat all the food they could see.

Counter-counter would involve giving the same person a choice of edible
stuff, with varying neutritional/food content and see if the reasonable
person is qualified to judge what constitutes food in the first place.
I'd contend that is is a trivial matter to get any random "reasonable"
person to eat stuff which, while edible, contains none of the basic food
groups at all. I did not claim that Macdonalds was inedible, just that
it wasn't food.

In this case, we would have to place our reasonable person in a room
with people clicking a license and ask them to differentiate which are
intending to comply and which not.

I'd contend that the result would show that a reasonable (or, indeed,
any) person cannot judge the intentions of someone clicking the agree
box.

To determine intentions, we can but take the subject's word for them. We
could easily conclude from this that click-wrap isn't worth the
electricity used to display it... it cannot be a contract in the same
way as a signature on each page of a document is. (Now, if you had to
click to confirm that you had read each page of the contract, before you
could move on to the next, that would be different.)

Or, we could assert that e-business needs a means of having electronic
contracts and thus giving the (contextual) mouse click a similar status
in law as a signature. This would address the issue (by fait) but would
not be the logical conclusion from an objective test.

Anyway:

How /would/ a reasonable person tell if the person doing the clicking
intended to be bound by the click? Is it not just as likely that a
reasonable person would note the lack of perusal and consideration (a
reasonable observation) and recall that it is unusual for anyone to
agree to this license with the intention of complying (a reasonable
conjecture) and thus, reasonably, upon hearing the subjects claim "but I
had no intention of complying", the reasonable person would exclaim "I
knew it all along!' :)

> If it is physically impossible to determine the terms of the license at
> the time you agree to it, then you might have other arguments.

Indeed - I think the advise in brackets above: displaying each page of
the offered contract/license agreement and requiring a click on "I have
read the above" before being allowed to move on would make the agreement
stronger. Being able to go back after finishing to review the pages
would be good as well as having the ability to hardcopy the agreement
for perusal (by a lawyer, say).

In other words, there exist ways of implementing clickwrap which avoids
the air of dishonesty which currently exists.

I understand that clickwrap has yet to be challenged in NZ courts.