October 25, 2005
Can Kids Bind Parents to EULAs?
By Eric Goldman
Abramson v. America Online, 2005 US Dist. LEXIS 10095 (N.D. Tex. May 25, 2005).
One of the great unresolved issues in Cyberlaw: if a kid downloads P2P file sharing software, are the parents responsible? This issue is germane to the P2P file sharing lawsuits when kids use the software to engage in illegal file downloads. It's also germane to adware because the P2P file sharing software may be bundled with adware, and the parents may (legimitately) complain that they did not ask or want the software to be installed on their computer.
In the Abramson case, mom wanted AOL installed on her computer. She told dad, who asked Jr. to install AOL. Unfortunately, the case doesn't mention Jr.'s age. Mom develops a legal gripe against AOL, and she sues in Texas. AOL responds that she is bound by AOL's user agreement requiring that the lawsuit be brought in Virginia. Mom says she never agreed to the user agreement. AOL says that Jr. did and that binds mom.
The court says that mom is bound to the user agreement for two alternative reasons:
1) Jr. had "apparent" authority to bind mom to the agreement. With apparent authority, a third party reasonably believes that a principal delegated authority to the agent. Here, this seems confusing--how can an automated agent (AOL's click-through mechanism) "perceive" authority? The court fails to address that. Instead, read at its most literal level, if an automated agent "thinks" the person clicking has authority, then a clicking kid binds the parents.
2) Mom "ratified" the contract by continuing to use the AOL service knowing that the service was governed by a contract of some sort.
What does all this mean for adware vendors? This case probably doesn't speak directly to the typical bundled download. First, mom gave instructions to install the AOL software, whereas many parents may not give equivalent instructions to their kids regarding P2P file sharing software (in fact, many parents probably give instructions not to download). Second, we may be hard-pressed to say that a parent "ratifies" the adware install, especially if the parent tries to remove the install.
However, this case also shows that an "ignorance of the contract" defense on the part of parents is dicey. And, if followed by other courts, this court's bald statement that an automated agent could believe that the clicker has apparent authority could have a powerful impact on attempts to finger-point otherwise.
Hat tip: ContractsProf blog.
UPDATE: Going back through some old notes, I'm reminded of Motise v. America Online, Inc., 346 F. Supp. 2d 563 (SDNY Nov. 30, 2004), where a stepfather signed up an AOL account and his stepson (who apparently shared use) was bound by AOL user agreement for choice of forum purposes.
UPDATE 2: I received the following email from "Elaine Abramson" from email address "AAArtWork@aol.com" (reposted with permission). Obviously, I'm in a worse position to evaluate the facts than the judge was, so I offer this up for your consideration:
"1) My son was NOT a minor on May 20, 1999, the date that AOL paralegal Carrie Davis claimed in her PERJURED Affidavit. My son was 30 years-old on that date.
2) My son was working in New York on that date while I and my computer were in Dallas, Texas.
3) May 20, 1999 was a Thursday, a working day. My son was at work.
4) On May 20, 1999 I owned a Magnavox 386 computer. It did NOT have a modem and did NOT have internet capabilities. I did NOT purchase a computer with Internet connections until March 21, 2000, eleven (11) months after Carrie Davis's PURJURED Affidavit claimed that I had become an AOL member.
5) My Magnovox computer only had a floppy drive. It did NOT have a CD drive and could NOT use AOL's Internet connection CD's.
6) AOL.5 was the CD that was used to connect my computer to the internet. The packaging states that it has a 2000 copyright date. Therefore, I could NOT have become an AOL member prior to AOL releasing that CD to the public.
7) On Google I found listings for Carrie Davis having created (depending on how it was listed) between 10,700 and 260,000 Affidavits similar to the PERJURED one she submitted to the Texas and Virginia courts in my case.
Because of all of the above facts, it was physically impossible for me to have become an AOL member on the date stated in Carrie Davis' PERJURED Affidavit. I have repeatedly submitted these documents to the United States District Court Eastern District of Virginia - Alexandria Division but have been ignored because I am pro se."
I have not personally reviewed the Abramson case, but I agree that the apparent authority issue does not seem to be a proper basis for liability. Even assuming that an automated agent for AOL can perceive authority, the apparent authority agency relationship generally cannot develop based solely on the actions of the purported agent. In other words, the words or acts of the purported principal are what need to be relied upon by the receiver of the agent action.
Thus, here, even if AOL's automated agent COULD perceive authority, the perception must have been of words or actions of the principal, or the mother. There was no action here by the mother that could have been perceived by AOL's agent, even if it was capable of doing so. The only act that could have been perceived was that of the purported agent, or son. Therefore, such action should not be held sufficient to establish an agency relationship between the mother and son, since it is but an apparent bare assertion by the purported agent that he has authority to act on behalf of the mother. I don't think such bare assertion is (was?) sufficient in the great majority of jurisdictions.
Posted by: Garet at October 26, 2005 01:24 PM