Comments on: Rounding Up Two Online Contract Formation Cases https://blog.ericgoldman.org/archives/2019/10/rounding-up-two-online-contract-formation-cases.htm Wed, 23 Oct 2019 12:48:00 +0000 hourly 1 By: Jason Green https://blog.ericgoldman.org/archives/2019/10/rounding-up-two-online-contract-formation-cases.htm#comment-2432 Wed, 23 Oct 2019 12:48:00 +0000 https://blog.ericgoldman.org/?p=20491#comment-2432 In reply to AFK.

Relevant: in Nicosia v. Amazon.com, Inc., No. 14-4513, 2019 U.S. Dist. LEXIS 100162 (E.D.N.Y. June 14, 2019), EDNY considered that “reasonably prudent internet users know that there are terms and conditions attached when they log onto Facebook, order merchandise on Amazon, or hail a ride on Uber.” See id. at *51. “They know this, not because a loud, brightly-colored notice on the screen tells them so, but because it would be difficult to exist in our technological society without some generalized awareness of the fact.” Id.

]]> By: AFK https://blog.ericgoldman.org/archives/2019/10/rounding-up-two-online-contract-formation-cases.htm#comment-2431 Mon, 21 Oct 2019 15:47:00 +0000 https://blog.ericgoldman.org/?p=20491#comment-2431 Without reading the full text of each decision, I wonder whether courts are imposing a new background norm on plaintiffs: that it’s crazy to think that any modern service doesn’t have a contract at all. So, if a service makes a reasonable effort to put users on notice of the T&C, the court will give the service the benefit of the doubt rather than insist upon technically perfect execution.

IMO this kind of background assumption is overdue.

We could use a similar update to assumptions in online trademark infringement cases. Plenty of judges assume that whenever a person buys something for less than $100 online, the infringement analysis favors the plaintiff because this purchaser is not sophisticated and will make a hasty decision that is likely to be mistaken.

But I don’t know if there is any evidence for this, and anecdotally I feel that the average online shopper carefully considers reviews and product comparisons, even for the smallest purchases.

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