Specht V. Netscape Communications Corporation

Specht v. Netscape Communications Corporation

Facts:

Customers wishing to obtain SmartDownload from Netscape's web site arrive at a page

pertaining to the download of the software. By clicking on the box, a visitor initiates the download and a pop up come up and says. License Agreement: Please review and agree to the terms of the Netscape SmartDownload software license agreement before downloading and using the software. Customers are not required affirmatively to indicate their assent to the License Agreement, or even to view the license agreement, before proceeding with a download of the software. But if a visitor chooses to click on the underlined text in the invitation, a hypertext link takes the visitor to a web page entitled "License & Support Agreements." The use of each Netscape software product is governed by a license agreement. You must read and agree to the license agreement terms BEFORE acquiring a product. For products available for download, you must read and agree to the license agreement terms BEFORE you install the software. If you do not agree to the license terms, do not download, install or use the software. Below the paragraph appears a list of license agreements, the first of which is "License Agreement for Netscape Navigator and Netscape Communicator Product Family (Netscape Navigator, Netscape Communicator and Netscape SmartDownload)." If the visitor then clicks on that text, he or she is brought to another web page, this one containing the full text of the License Agreement. The License Agreement also contains a term requiring that virtually all disputes be submitted to arbitration in Santa Clara County, California.

Issue:

Did the Plaintiffs consent to arbitration?

Holding:

Only if they click the; I agree button.

Reasoning/Law:

The Federal Arbitration Act expresses