This page considers clickwrap, browsewrap and shrinkwrap.
It covers -
property aspects of end user licence agreements (EULAs)
are discussed in more detail here.
What has variously been called click-wrap, browse-wrap,
sneak-wrap and even email-wrap has become central to much
electronic commerce and - more broadly - to online activity.
It is used -
signal user acceptance of a vendor's terms & conditions,
eg in buying a software CD-ROM, installing downloaded
software, buying a pair of boots from an etailer or
signing up with an ISP
bound liability in online interaction, including participation
in dating spaces and other
online fora or
specify use of arbitration
mechanisms or the law used in disputes involving parties
in different jurisdictions
invoke user acceptance of far-reaching warranties and
limit particular uses that would otherwise be permitted
by law (eg use contract law to override copyright law)
a mechanism enabling electronic contracts and thereby
obviating the need for witnesses, ink, a physical signature
use presents no concerns at an operational or public policy
level and is underpinned by legislation such as Australia's
Electronic Transactions Act 1999 (ETA),
the US Electronic Signatures In Global & National
Commerce Act and European Electronic Commerce Directive.
However application of different wraps may pose questions
of statutory rights
provisions that are not enforceable
claims that are simply absurd.
is clear that many consumers do not read the fine print
that forms part of many wrap agreements - discussed here
- and that much of the fine print is deliberately presented
in a way that inhibits understanding by consumers.
In considering those mechanisms it is important to recognise
that contracts can be formed in Australian and overseas
law without a witnessed signature, and indeed without
The standard elements of a contract for sale are -
(delivery of goods or services).
Not all activity involves a sale; most recorded music
and software for example is licenced by the intellectual
property owner to the consumer rather than sold outright.
It is also important to recognise that aspects of agreements,
online or offline, may be found by courts to be unenforceable.
You can, for example, assent to a contract with a provision
that requires you to sacrifice your firstborn to the Prince
of Darkness but an Australian court will not allow the
other party to enforce that provision.
Shrinkrap emerged in the 1980s alongside personal
computers, with a recognition that hardware/software developers
and their agents could reduce costs and uncertainty by
offering a 'take it or leave it' licence rather than negotiating
terms & conditions for every consumer.
The consumer signals acceptance of that licence, which
might include a warranty
of problematical value, by opening the plastic used to
seal a box containing software and documentation or by
breaking a seal on the oyster case housing a music CD
or DVD. The detailed licence terms however might be inside
the plastic and thus unreadable until the seal is broken.
In principle some jurisdictions have held that it is necessary
to go further and actually install software or view/listen
to the contents of the disk. There has been little acceptance
of proposals to shrinkwrap books, in particular mass market
books rather than unique technical documentation
In practice, as highlighted in exploration of consumer
protection issues, many dealers - including some of Australia's
largest retailers - have ignored such subtleties and simply
refuse to issue refunds once the wrapper has been breached
unless satisfied that the disk was defective when it left
The expansive nature of end user licence agreements underpinned
by some software shrinkwrap was parodied by humourist
Dave Barry -
breaking this seal, the user hereinafter agrees to abide
by all the terms and conditions of the following agreement
that nobody ever reads, as well as the Geneva Convention
and the UN Charter and the Secret Membership Oath of
the Benevolent Protective Order of the Elks, and such
other terms and conditions, real and imaginary, as the
Software Company shall deem necessary and appropriate,
including the right to come to the user's home and examine
the user's hard drive, as well as the user's underwear
drawer if we feel like it, take it or leave it, until
death do us part, one nation indivisible, by the dawn's
early light, in the name of the Father, the Son, and
the Holy Ghost, finders keepers, losers weepers, thanks
you've been a great crowd, and don't forget to tip your
Clickwrap (aka click-through and click-&-accept) appeared
with the development of net-based electronic commerce.
Retailers for example elicited name, address and other
details from potential purchasers as part of online retailing,
with acceptance of the vendor's terms & conditions
(and the consumer's commitment to the contract) being
signalled by a click on the onscreen 'I agree' or 'accept'
button or equivalent interactive feature.
Publishers and others placed content behind firewalls
for delivery over the web or by email. Access to that
intellectual property (eg an audio file, a software upgrade,
an image or text) is dependent on the user being alerted
that there is a licence and then signalling consent by
clicking the button rather than stripping the polyethylene
sheath from the shrinkwrapped box of goodies.
Clickwrap has become one of the foundations of electronic
commerce, experienced if you want to read the New
York Times online, participate in online auction
spaces such as eBay or simply accept the latest software
upgrade from dominant vendors such as Adobe and Apple.
It is consistent with Australian and overseas legislation
such as the Electronic Transactions Act 1999
(Cth), discussed here.
Browsewrap (sometimes disparaged as sneak-wrap or fail-wrap)
is more contentious. It involves assertions that merely
visiting a web site binds the visitor to terms & conditions
set by the site operator, although the visitor may not
be aware of those conditions.
Typically content on that site features a link to a separate
page that features a licence agreement that purports to
bind everyone viewing the content. In contrast to clickwrap,
the viewer is not required to signal assent to the terms
of that licence by clicking a button and may not conceptualise
the visit in terms of a licence.
Depending on the architecture of a site and design
characteristics the viewer may not immediately be aware
that there is a licence for a site (eg may browse several
pages without recognising the link or encountering the
licence statement). The visitor might surf the site and/or
download content without having to explicitly agree to
the licence terms or even read those terms.
As noted below, that has resulted in arguments that browse-wrap
licences are unenforceable because it cannot be shown
that the user was aware of and positively assented to
specific features of the licence.
Some enthusiasts have sought to apply agreements to email
and other communication through inclusion of 'email-wrap'
footers in email
and fax messages.
Overreaching mailwrap licenses are problematical, because
merely sending a message to someone does not constitute
acceptance. I can send you an email indicating that reading
my message signals your acceptance of terms that you will
supply me with your liver and a million dollars. You,
along with the court, can laugh.
Mailwrap has inevitably been parodied. Email from US gadfly
Cory Doctorow for example proclaims that
By reading this email, you agree, on behalf of your
employer, to release me from all obligations and waivers
arising from any and all NON-NEGOTIATED agreements,
licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap,
confidentiality, non-disclosure, non-compete and acceptable
use policies ("BOGUS AGREEMENTS") that I have
entered into with your employer, its partners, licensors,
agents and assigns, in perpetuity, without prejudice
to my ongoing rights and privileges. You further represent
that you have the authority to release me from any BOGUS
AGREEMENTS on behalf of your employer.
Is use of shrinkwrap and clickwrap legally valid, ie consistent
with statute law and with decisions by Australian and
Australia has followed the US, accepting both shrink-wrap
and click-wrap in principle. There has been little case
law but it is conceivable that particular claims in specific
shrink or click agreements would be rejected by an Australian
court, for example because they were onerous or because
the consumer did not consent to a transaction. Potential
issues are highlighted below.
Overall, principles for those seeking to defend a wrap
licence include -
terms & conditions that encompass standard contract
terms such as warranties, limitation of liability and
ensuring that the consumer (potential purchaser or visitor)
is be made aware as early as possible that any transaction
is subject to the terms & conditions of the agreement
display of those terms & conditions in a clear concise
way to enable identification and understanding by an
the consumer to expressly accept/reject the terms by
clicking a button marked 'I agree' (or suchlike) on
the basis that the consumer has had access to the terms
and is aware that the agreement relates to those terms
further action in relation to the transaction if the
consumer does not accept the terms and conditions
does not offer vendors a blank cheque. In June 2007 for
example in Bragg v. Linden Research a US federal
court in Pennsylvania ruled that an arbitration clause
in Second Life's terms of
service was unconscionable, buried in the clickwrap and
so one-sided as to leave the plaintiff without an effective
In 2010 UK retailer GameStation mockingly added an "immortal
soul clause" to online contracts, subsequently gaining
publicitly when it claimed that it "legally owns
the souls of thousands of online shoppers". The clause
placing an order via this Web site on the first day
of the fourth month of the year 2010 Anno Domini, you
agree to grant Us a non transferable option to claim,
for now and for ever more, your immortal soul. Should
We wish to exercise this option, you agree to surrender
your immortal soul, and any claim you may have on it,
within 5 (five) working days of receiving written notification
from gamesation.co.uk or one of its duly authorised
contract noted that -
reserve the right to serve such notice in 6 (six) foot
high letters of fire, however we can accept no liability
for any loss or damage caused by such an act. If you
a) do not believe you have an immortal soul, b) have
already given it to another party, or c) do not wish
to grant Us such a license, please click the link below
to nullify this sub-clause and proceed with your transaction.
provisions of the contract are, of course, not enforceable
in a court of law. GameStation claimed that the exercise
demonstrated that 88% of people do not read terms &
conditions; another interpretation is that many consumers
believe that they are damned whatever they read.
Clickwrap and shrinkwrap are explored in major works on
licencing and are touched on in primers regarding electronic
commerce. For Australia two accessible introductions are
Adrian McCullagh's Legal Aspects of Electronic Contracts
and Digital Signatures' in Going Digital: Legal Issues
for Electronic Commerce, Multimedia and the Internet
( St Leonards: Prospect Media 1998) and Jay Forder &
Patrick Quirk's Electronic Commerce & the Law
(Milton: Wiley 2001)
For the US regime see David Case's 2002 'Common Mistakes
Made by Licensors in Administering Clickwrap Agreements'
in 19 Computer & Internet Law 16, Jennifer
Hill's 2003 paper
'The Future of Electronic Contracts in International Sales:
Gaps and Natural Remedies under the United Nations Convention
on Contracts for the International Sale of Goods' in 2
Northwestern Journal of Technology & Intellectual
Property Law 1, Sean Crotty's 2002 'The How and Why
of Shrinkwrap License Validation Under the Uniform Computer
Information Transactions Act' in 33 Rutgers Law Journal
745, Garry Founds' 1999 'Shrinkwrap and Clickwrap Agreements:
2B or Not 2B' in 52 Federal Communications Law Journal,
Julie Cohen's 1997 'Contract Law - Shrinkwrap Licenses
- Seventh Circuit Holds That Shrinkwrap Licenses Are Enforceable.
- ProCD, Inc. v. Zeidenberg' in 110 Harvard Law Review
1946 and Batya Goodman's 1999 'Honey, I Shrink-Wrapped
the Consumer: The Shrink-Wrap Agreement as an Adhesion
Contract' in 21 Cardozo Law Review 319. A point
of entry into the Canadian literature is provided by Vincent
Gautrais' 2004 'The Colour of E-consent' in University
of Ottawa Law & Technology Journal (PDF)
Works of particular interest regarding intellectual property
EULAs are highlighted here.