Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, January 27, 2011

Contractual Relationships and the Passive Online Media User

Woodrow Hartzog, University of North Carolina, Chapel Hill School of Journalism & Mass Communication; Stanford University Center for Internet & Society, has published The New Price to Play: Are Passive Online Media Users Bound by Terms of Use? at 15 Communication Law and Policy 405 (2010). Here is the abstract.
When individuals turn on the television, listen to the radio, or read newspapers, they are not forming contractual relationships. Yet almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users” - online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.
The full text is not available from SSRN.

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