March 16, 2007
Computers can enter into contracts on behalf of people. The Uniform Electronic Transactions Act (UETA) says that a "contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements."
This presumes a prior agreement to do business electronically. So what constitutes such an agreement? The Internet Archive, which spiders the Internet to copy Web sites for posterity (unless site owners opt out), is being sued by Colorado resident and Web site owner Suzanne Shell for conversion, civil theft, breach of contract, and violations of the Racketeering Influence and Corrupt Organizations act and the Colorado Organized Crime Control Act. Shell's site states, "IF YOU COPY OR DISTRIBUTE ANYTHING ON THIS WEB SITE, YOU ARE ENTERING INTO A CONTRACT," at the bottom of the main page, and refers readers to a more detailed copyright notice and agreement. Her suit asserts that the Internet Archive's programmatic visitation of her site constitutes acceptance of her terms, despite the obvious inability of a Web crawler to understand those terms and the absence of a robots.txt file to warn crawlers away. A court ruling last month granted the Internet Archive's motion to dismiss the charges, except for the breach of contract claim. In a post on law professor Eric Goldman's Technology & Marketing Law blog, attorney John Ottaviani, a partner at Edwards & Angell in Providence, R.I., says the issue is "whether there was 'an adequate notice of the existence of the terms' and a 'meaningful opportunity to review' the terms." If a notice such as Shell's is ultimately construed to represent just such a "meaningful opportunity" to an illiterate computer, the opt-out era on the Net may have to change. Sites that rely on automated content gathering like the Internet Archive, not to mention Google, will have to convince publishers to opt in before indexing or otherwise capturing their content. Either that or they'll have to teach their Web spiders how to read contracts.
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