Vol 7 No 1 - Roger Williams University School of Law

important to know whether a contract is in existence and uponwhat terms. This question has been raised in the context ofshrink-wrap and click-wrap/click-through contracts. “Shrinkwrapcontracts” are normally used where the product, e.g.,software, is sold in a store. The terms of the contract are shrinkwrappedaround the product in fine print and in most instancesnot fully disclosed until after opening the package. “Click-wrap orclick-through contracts” are normally employed in an onlineenvironment, such as the Internet, and may, at best, involve theacceptance of the terms of the contract by clicking on a digital icondenoting consent after having been shown the terms. In someclick wrap cases, which are highly questionable from a legalperspective, terms are not clearly displayed prior to the buyerentering into the agreement. In the recent decision of Specht v.Netscape Communications Corp and AOL,345 a third type ofsituation called “browse-wrap” was outlined. A browse-wrapscenario arises where the Internet consumer is not required tonegotiate an “I agree” button or icon or view the licence termsbefore gaining access to the product. Instead, the terms arelocated behind a button/icon on the website that the consumer isnot forced to view or engage. In Specht, the court held that thebrowse-wrap scenario would not usually give rise to a validcontract.346In ProCD, Inc. v. Zeidenberg,347 the court held that shrinkwrap,and arguably click-wrap, licences are enforceable in certaincircumstances.348 ProCD developed a product known as SelectPhone (the compilation of over 3,000 telephone directories on CD),which was sold in stores for $150.349 ProCD invested over $10million in developing this product.350 Mindful of the Feist decisionand the inability of copyright law to protect raw data, ProCDsought to commodify informational value through a contractual345. 150 F. Supp. 2d 585 (S.D.N.Y. 2001).346. See id. at 594.347. 86 F.3d 1447 (7th Cir. 1996).348. Id. at 1449; see, e.g., Register.com v. Verio Inc., 126 F. Supp. 2d 238 (S.D.N.Y.2001); Hotmail Corp. v. Van Money Pie Inc., 47 U.S.P.Q. 2d. 1020 (N.D. Cal. 1998);Lemley et al., Software and Internet Law 494-95 (2000); see also Hill v. Gateway 2000,Inc., 105 F.3d 1147 (7th Cir. 1997), cert. denied, 118 S. Ct. 47 (1997); Nat’l BasketballAss’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).349. ProCD, 86 F.3d at 1449.350. Id.