[IP] Re: "Terms of Use" vs EULAs

Begin forwarded message:

From: "Eric Rachner" <eric@mostly.harmless.org>

Date: June 21, 2009 9:00:29 PM EDT

Subject: RE: [IP] "Terms of Use" vs EULAs

Albert,

Precedent for Terms of Use as applied to web sites is derived more from brick-and-mortar services than from software EULAs. The easiest example I can think of is private parking lots, which must post their terms of use in some conspicuous location. These signs read similarly to the Terms of Use for a web site: the operator sets forth arbitrary terms, and effectively says “take it or leave it.”

- Eric

From: David Farber [mailto:dave@farber.net]
Sent: Sunday, June 21, 2009 4:37 PM
To: ip
Subject: [IP] "Terms of Use" vs EULAs

Begin forwarded message:

From: Albert Lukaszewski <alukaszewski@acm.org>

Date: June 21, 2009 3:39:50 PM EDT

To: David Farber <dave@farber.net>

Subject: For IP: "Terms of Use" vs EULAs

Dear Dave,

In preparing to launch a web service, I have been looking into sites' "Terms of Use" with particular regard to database copyright. Most sites tend to render their terms with much the same restrictions and framework as EULAs. However, as far as I can tell, the legal status of "Terms of Use" pages are not established. I am familiar with ProCD Inc. v. Zeidenberg, wherein breach of contract was assessed because of the EULA involved. But website terms do not seem to naturally follow - particularly when they would be binding on the web visitor (as opposed to limiting the liability of the publisher). Can one truly be bound to "Terms of Use" simply by visiting a website? I would appreciate your passing this message on to IP in the hope that the legal expertise on the list might be able to shed light on this question.

Many thanks in advance for your consideration and for administering such a helpful list.

Albert Lukaszewski

Albert Lukaszewski, PhD

St Andrews, Scotland

Mit Arbeit kommt gut Glück.

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