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For years, online concerns have loaded their Web sites with easily ignored restrictions. Now courts are upholding them.

Sunday, February 24, 2002

By Anick Jesdanun, The Associated Press

NEW YORK -- Read the fine print, and you'll discover you can't use Microsoft's logos and cartoons to belittle the software giant. Nor should you use Opera's Web browser to pilot an aircraft or a nuclear facility.

	Read what you click Some examples of provisions in software and Web fine print: Liability restrictions: Many software products are licensed "as is" with little or no warranty protection. Users of Opera browsers must acknowledge that the software isn't meant for critical functions like running nuclear plants. Jurisdictional restrictions: Many companies require users to file any lawsuits in specific countries or states, or to use arbitration instead. Courts have sometimes found these provisions unreasonable. Speech restrictions: Network Associates bars software reviews without permission, a clause under challenge by New York's attorney general. The company says it wants to make sure media organizations are running the latest versions of software. Rights to change: TiVo sells a $249 "lifetime" subscription to its service for digitally recording TV shows, but users acknowledge that TiVo may discontinue the service at any time. EBay and other sites require users to check back regularly for any changes. Often, users agree to accept the changes by continuing to use the site or service -- even if they don't see the update first. Age verification: By using a service or site, users sometimes agree they are at least 13, 18 or 21. Reverse engineering: To protect trade secrets, most software products prohibit the manipulation of programming code to learn how it works or tweak its performance. Critics say tweaking is sometimes needed to make software compatible with existing systems. Privacy: Some user agreements incorporate privacy statements that disclose the collection and sharing of data. To catch cheaters, Verant Interactive considered scanning computers running the online game Everquest, but backed down after users complained. -- By The Associated Press

Web sites often carry similar restrictions: Viewing ads is obligatory at Stories.com and you may not link to The Financial Times if your site "could be construed as distasteful, offensive or controversial."

New York Attorney General Eliot Spitzer recently filed a lawsuit against one such provision, a restriction Network Associates places on publishing reviews of its software without permission.

Dozens of other terms remain buried in the electronic fine print. Though rarely read by users, courts are starting to validate them.

"The sense among the public is, 'I don't care what it says. It doesn't really count,' " said Fred von Lohmann of the Electronic Frontier Foundation, the cyberspace civil liberties organization. "That is not really the case. If the agreement is presented in the right way, it can be enforceable."

The proper way to notify users is still a matter of debate.

Courts have largely accepted the concept of shrink-wraps, in which users agree to license terms simply by opening the package. That reasoning may be extended to click-wraps, in which users click on an "I agree" button while installing software or registering at a Web site.

Maryland and Virginia have passed laws to validate these agreements, and the high-tech industry is pressing other states to adopt them.

Less clear is their enforceability.

Even if users know the terms, courts may still find some provisions onerous or counter to the public interest, said Jean Braucher, a law professor at the University of Arizona.

When businesses began setting up Web sites five years ago, they had little legal guidance. "A lot of companies just put buttons on Web sites that had legal terms and conditions," said Mary Jo Dively, a Pittsburgh e-commerce attorney.

Now, lawyers recommend affirmation by the user, such as clicking an "I agree" button. Some software products even require users to scroll through the entire text before the button appears.

"The law is only starting to catch up," Dively said.

As a consumer attorney in Charleston, W.Va., David McMahon is among the few who does read the terms -- not that it mattered when he bought a printer two years ago.

He found out only when he got home that software to run it had warranty disclaimers he didn't agree with.

But by then, he was too lazy to pack up everything and return to the store.

"You're home. You want to use your printer," McMahon said. "They knew I wasn't going to go through" the trouble of returning it.

By making terms difficult to find ahead of time, consumers can't make shopping decisions based on the clauses, he complains.

Standard form contracts are not new.

Credit cards, apartment rentals and airline tickets are littered with them, while parking garages and restaurants post notices disclaiming responsibility for personal items.

But computers bring new challenges in informing users.

Users with ad-blocking software installed would be in violation as soon as they visit Stories.com's home page, even though the ad-requirement policy requires one more click to reach.

America Online's restrictions on sending junk e-mail to users applies to mail sent from nonusers as well, even if they never visited AOL's site.

Some Web sites also reserve the right to change terms, leaving users to check for updates. And many software makers won't even guarantee that their products work.

Lawyers who write such terms say they are generally done to protect the company and not to restrict users.

They say companies probably already have legal restrictions on trademarks and copyrights. Hence the prohibition on using Microsoft's logos or animated helpers to disparage the company.

Stories.com chief executive Kenn Wagenheim says he worries more about frequent abusers -- not about casual surfers who may be unaware of the ad-blocking policies.

And AOL's policy on junk e-mail reflects popular attitudes, said spokesman Nicholas Graham. Even without the policy, he said, AOL could turn to state and federal laws to sue junk mailers.

Nevertheless, companies occasionally have to scale back.

Verant Interactive retracted its right to scan computers running the online game Everquest after users complained about privacy. The company wanted to catch cheaters.

Washington attorney Joel Wolfson says the Internet's reach can help keep users informed about onerous clauses.

"If there are odd terms in them," he said, "there is tremendous pressure on that vendor to bring its terms back into what's more reasonable."