Jan 172011
 
 January 17, 2011  Online

The New Price to Play: Are Passive Online Media Users Bound by Terms of Use?
Woodrow Hartzog
University of North Carolina at Chapel Hill – School of Journalism and Mass Communication; Stanford University – Center for Internet and Society
Communication Law and Policy, Vol. 15, No. 4, p. 405, 2010

Abstract:

When individuals turn on the television, listen to the radio, or read newspapers, they are not forming contractual relationships. Yet almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users” – online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.

Source: SSRN. The full article does not seem to be available on their site at this time.

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