Browse wrap

Browse-wrap (also Browserwrap or browse-wrap license) is a term used in Internet law to refer to a contract or license agreement covering access to or use of materials on a web site or downloadable product. In a browse-wrap agreement, the terms and conditions of use for a website or other downloadable product are posted on the website, typically as a hyperlink at the bottom of the screen. Unlike a clickwrap agreement, where the user must manifest assent to the terms and conditions by clicking on an "I agree" box, a browse-wrap agreement does not require this type of express manifestation of assent. Rather, a web-site user purportedly gives his or her assent by simply using the product — such as by entering the website or downloading software.

Browse-wrap agreements, like clickwrap agreements, derive their name by analogy to the "shrink wrap agreements" included inside the sealed packaging of tangible products, where one can not see the agreement until the product has been purchased or used. Courts that have ruled on the issue have held that the validity of a browse-wrap agreement primarily depends on whether a website user has actual or constructive notice of the terms and conditions prior to using the website or other product.

In Specht v. Netscape, the Second Circuit Court of Appeals looked at the enforceability of a browse-wrap contract entered into on the Netscape website. Users of the site were urged to download free software available on the site by clicking on a tinted button labeled "download". Only if a user scrolled down the page to the next screen did he come upon an invitation to review the full terms of the program's license agreement, available by hyperlink. The plaintiffs, who had not seen the agreement, downloaded the software and then were later sued for violations of federal privacy and computer fraud statutes arising from the use of the software. The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent. The court found that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms." Because the plaintiffs were not put on notice of these terms they were not bound by them.

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