Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 9

Feldman v. Google, Inc.
United States District Court, Eastern District of Pennsylvania, 2007. 513 F.Supp.2d 229.
• Company Profile In the mid-1990s, Larry Page and Sergey Brin, Stanford University graduate students in computer science, began work on an Internet search engine called "BackRub." Renamed "Google" after the mathematical term for a 1 followed by 100 zeros, the engine was made available in 1998. In less than a year, the service was acquiring major clients, receiving achievement awards, being included on many "Top Web Site" lists, and handling millions of queries per day. By 2000, Google had become the world's largest search engine. According to Google, Inc.'s Web site at www.google.com , its mission is to organize the world's information and make it universally accessible and useful. The company's revenue derives from keyword-targeted advertising.
• Background and Facts In Google, Inc.'s AdWords program, when an Internet user searches on www.google.com using key words that an advertiser has identified, an ad appears. If the user clicks on it, Google charges the advertiser. Google requires an advertiser to agree to certain terms before placing an ad. These terms-set out in a preamble and seven paragraphs-are displayed online in a window with a scroll bar. A link to a printer-friendly version of the terms is at the top of the window. At the bottom of the page, viewable without scrolling, are the words, "Yes, I agree to the above terms and conditions," and a box on which an advertiser must click to proceed. Among the terms, a forum-selection clause provides that any dispute over the program is to be "adjudicated in Santa Clara County, California." Lawrence Feldman, a lawyer, participated in the program by selecting key words, including "Vioxx," "Bextra," and "Celebrex," to trigger a showing of his ad to potential clients. In a subsequent suit between Feldman and Google in a federal district court in Pennsylvania, Feldman claimed that at least 20 percent of the clicks for which he was charged $100,000 between January 2003 and January 2006 were fraudulent. a Feldman filed a motion for summary judgment. Google asked the court to transfer the case to a court in Santa Clara County, California.
a. Feldman was alleging that click fraud had taken place. Click fraud occurs when someone, such as a competitor or a prankster with no interest in an advertiser's goods or services, clicks repeatedly on an ad, driving up the ad's cost to the advertiser without generating a sale. For more on click fraud, see the Insight into Ethics feature on pages 292 and 293.
GILES, J. [Judge]
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The type of contract at issue here is commonly referred to as a "clickwrap" agreement. A clickwrap agreement appears on an Internet web page and requires that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the Internet transaction. Even though they are electronic, clickwrap agreements are considered to be writings because they are printable and storable. [Emphasis added.]
To determine whether a clickwrap agreement is enforceable, courts presented with the issue apply traditional principles of contract law and focus on whether the plaintiffs had reasonable notice of and manifested assent to the clickwrap agreement. Absent a showing of fraud, failure to read an enforceable clickwrap agreement, as with any binding contract, will not excuse compliance with its terms. [Emphasis added.]
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Plaintiff [Feldman] claims he did not have notice or knowledge of the forum selection clause, and therefore that there was no "meeting of the minds" required for contract formation.* * *
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* * * In order to activate an AdWords account, the user had to visit a Web page which displayed the Agreement in a scrollable text box.* * * [T]he user did not have to scroll down to a submerged screen or click on a series of hyperlinks to view the Agreement. Instead, text of the AdWords Agreement was immediately visible to the user, as was a prominent admonition in boldface to read the terms and conditions carefully, and with instruction to indicate assent if the user agreed to the terms.
That the user would have to scroll through the text box of the Agreement to read it in its entirety does not defeat notice because there was sufficient notice of the Agreement itself and clicking "Yes" constituted assent to all of the terms. The preamble, which was immediately visible, also made clear that assent to the terms was binding. The Agreement was presented in readable 12-point font. It was only seven paragraphs long-not so long so as to render scrolling down to view all of the terms inconvenient or impossible. A printer-friendly, full-screen version was made readily available. The user had ample time to review the document.
* * * [T]he user * * * had to take affirmative action and click the "Yes, I agree to the above terms and conditions" button in order to proceed to the next step. Clicking "Continue" without clicking the "Yes" button would have returned the user to the same Web page. If the user did not agree to all of the terms, he could not have activated his account, placed ads, or incurred charges.
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A reasonably prudent Internet user would have known of the existence of terms in the AdWords Agreement. Plaintiff had to have had reasonable notice of the terms. By clicking on "Yes, I agree to the above terms and conditions" button, Plaintiff indicated assent to the terms.
• Decision and Remedy The court held that "the requirements of an express contract for reasonable notice of terms and mutual assent are satisfied." Feldman and Google were bound to the terms. The court denied Feldman's motion for summary judgment and granted Google's motion to transfer the case.
• The Ethical Dimension With respect to click fraud, which was the heart of Feldman's claim in this case, what circumstances might suggest unethical behavior by Google
• The E-Commerce Dimension Under what different facts might the court have held that the plaintiff did not have reasonable notice of the terms of the agreement and thus did not assent to them