Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Thu, 18 Sep 2003 11:26:45 -0400
From: James Grimmelmann <james.grimmelmann@xxxxxxxx>
Subject: VeriSign creates binding contracts on typos? I think not.
X-Sender: jtg27@xxxxxxxxxxxxxxxxxxx (Unverified)
To: dave@xxxxxxxxxx
Dave:
Sparked by the discussion on IP yesterday, I wrote up at LawMeme my
thoughts about whether VeriSign's Terms of Service are now binding on
anyone who makes a mistake in typing a URL. I don't think so; even the
Dread UCITA contains plenty of provisions to keep situations like this one
from creating contracts.
James
http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1210
Features: VeriSign Hijacks DNS Typos . . . And Creates Binding Contracts?
<snip>
What're at stake here are typos. You know, mistakes. VeriSign itself is
claiming that people will only come to its site by accident. Everything on
SiteFinder starts from the premise that people made a mistake while typing
in a URL (or are quite likely to have made a mistake, which is just as
good). So when I load a page from SiteFinder after coming in off a typo
domain . . .
* I made a mistake, and
* VeriSign knows I made a mistake.
There's not a court in the country that would uphold this "contract,"
UCITA or no. We're talking first-semester Contracts doctrine. There's no
objective consent to be bound; it would be unreasonable for VeriSign to
conclude that people coming in in this way had agreed to its terms.
We don't even need to reach the issue of whether people know about
VeriSign's Terms of Service before using DNS. Yes, knowledge of what
you're agreeing to is another prerequisite to a contract, and yes there's
a big issue over how constructive that knowledge can be (witness "click
here for our privacy policy" and "please read this tome carefully and in
great detail before continuing"), but it wouldn't matter if everyone in
the world knew that typos sent you to SiteFinder and that SiteFinder's
terms of service including selling your children into slavery. The
specific act at stake here remains a mistake. Precisely because VeriSign
hijacked all the unassigned domain queries, they're not allowed to
conclude anything from the fact that you tried to look one up.
Even UCITA disclaims attempts to make contracts stretch this far.
<snip>