Specht v. Netscape
| Specht v. Netscape | |
|---|---|
 |
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| Court | United States Court of Appeals for the Second Circuit |
| Full case name | Specht v. Netscape Communications Corporation |
| Argued | March 14 2002 |
| Decided | October 1 2002 |
| Citation(s) | 306 F.3d 17 |
| Case history | |
| Procedural history | Affirmed holding from 150 F. Supp. 2d 585 (S.D.N.Y. 2001) |
| Holding | |
| Licenses are not enforceable if there is not reasonable notice of the existence of a license and unambiguous consent to those terms. | |
| Court membership | |
| Judge(s) sitting | Circuit Judges Sonia Sotomayor, Joseph M. McLaughlin, Pierre N. Leval |
| Case opinions | |
| Majority | Sotomayor, joined by McLaughlin, Leval |
Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002), is a case in the United States Court of Appeals for the Second Circuit regarding the enforceability of browse-wrap software licenses. The court held that merely clicking on a download button does not show assent to license terms if those terms were not conspicuous and if it was not explicit to the consumer that clicking meant agreeing to the license.
The plaintiffs brought suit against Netscape Communications Corporation, alleging the defendant's SmartDownload plug-in invaded the plaintiffs' privacy in violation of the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. Netscape moved to compel arbitration and to stay court proceedings, arguing that the plaintiffs agreed to arbitration in the End User License Agreement. This means that any disputes, such as an invasion of privacy, would be settled out of court by an arbitrator. The plaintiffs allegedly accepted this EULA when they downloaded the plug-in.
The U.S. District Court for the Southern District of New York denied Netscape's motion. The United States Court of Appeals for the Second Circuit heard the appeal, and affirmed the district court's decision, finding that "plaintiffs neither received reasonable notice of the existence of the license terms nor manifested unambiguous assent to those terms before acting on the web page’s invitation to download the plug-in program".
The crux of the issue is whether or not the plaintiff's agreed to be bound by the defendant's licensing terms when they downloaded the free plug-in, even though the plaintiffs could not have learned of the existence of the terms before downloading. The court found that "a reasonably prudent Internet user in circumstances such as these would not have known or learned of the existence of the license terms before responding to defendants’ invitation to download the free software, and that defendants therefore did not provide reasonable notice of the license terms".
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