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[IP] : VeriSign creates binding contracts on typos? I think not.




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>

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