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Concord Man Defies Online 'Terms & Conditions'

Publication Date: 
June 30, 2010
Mike Sugarman

Professor Mark Lemley is quoted on the contractual legality of "click-wrap" agreements. Mike Sugarman of CBS filed this story:

We see them all the time on our computers -- those boxes that say "ACCEPT" when we buy or download things. So what does "accept" really mean? And what happens if we say no?

Concord businessman Terry Shoaff does his banking online. But he says when he logged onto his Bank of the West account recently, "This pop-up blocker came in, two and a half pages of single-spaced, typewritten, no spacing, no paragraphs. I mean, it wasn't an everyday type of explanation or contract that the average person would be able to respond to without having legal council."


Stanford law professor Mark Lemley is an expert on internet law. He says more and more websites are imposing contract language on users.

"The companies [that] are writing these contracts get to choose whatever terms they want."

Lemley has collected some extreme examples, like the video store rental agreement that reads: "I hereby surrender my soul for all eternity to the clerks at I Love Video and will become a clerk in their legion of zombies."


Mark Lemley says, "It would be nice to think, since I didn't pay attention to this -- I didn't read it -- I can't be bound by it. But unfortunately, that's not the law."

Lemley says companies may not be able to take your soul, but so far the courts have upheld most of the terms and conditions in click-wrap agreements.

"We get by," he says, "largely by ignoring the contracts that companies have written because we think 99% of the time they're not going to affect us. But when it does happen, then the courts have largely said, tough luck! You signed the contract, you're stuck with it."