With e-commerce, many of these elements have long been missing -- most generally the ability to negotiate the terms of a contract. Today, we may even have a situation where the humans have been taken out of the loop. Automated tools -- including automated replies, spiders, crawlers, and browsers -- may enter into contracts on our behalf, but without our knowledge.

That's a problem, when, in the ordinary course of browsing the Web or engaging in other electronic transactions, a person may enter as many as between 50 and 100 contracts a day. These include the terms of service (TOS) for your ISP, search engine, and browser, terms of use for a Web site, the privacy policies posted on the Web sites, copyright agreements or notices, trademark agreements or notices, warranties or disclaimers of warranty, and of course, the terms of software end user license agreements or EULAs. These agreements may include conditions on what you may or may not do on the site, an agreement to arbitrate disputes, an agreement to abide by and sue under the law of a particular jurisdiction, a granting of a license to use your information, and agreements not to use the information to which you are granted access in particular ways. In addition, an entity can condition your "access" to their Web site based upon your agreement to their terms and conditions -- failing to abide by their terms and conditions results not only in potential "breach of contract" liability, but also in liability for trespass, unauthorized access to a computer, or the civil tort of "trespass to chattels."

The situation begs the question: Are such contracts binding and if so, binding on whom?

My Robot Ordered the Tickets

Take for example, the recent case of Ticketmaster L.L.C. v. RMG Technologies, Inc., (U.S.D.C., Central District of California, October 16, 2007.) Ticketmaster, like many other Web sites has a "Terms of Use" that you must agree to before they will allow you to directly enter their Web site. These terms allow people to access the site only for non-commercial purposes, and do not permit the use of "automated devices" to access the service. Both the terms of use and certain technological measures are intended to prevent people from accessing the site more than once every three seconds and to limit the number of tickets that can be purchased during any individual visit.

The defendants, RMG, created a tool they called the "Ticket Broker Acquisition Tool" (TBAT) that would repeatedly visit the Ticketmaster site to acquire tickets from the site. Despite a lack of direct evidence that proved the defendants personally visited the Web site, or agreed to the terms of use, the court found that the nature of the tool itself made the defendant liable for the "infringing" cache copies of the Ticketmaster site which were copied by the tool. The court found that it was "highly likely" that the defendants received notice of the terms of use "by actually using the Web site."

However, this finding is inconsistent with the court's other finding that it was the TBAT -- the robot -- that "accessed" the Ticketmaster Web site. Indeed, other than the fact that the robot accessed the site, there was no evidence that the defendants ever saw, read, or otherwise agreed to the terms of use of the site (although, frankly I would be shocked if they had not). Indeed, it is likely that the designers of TBAT closely examined the Ticketmaster Web site when designing their product and service to defeat the technical measures designed to prevent automated and repeated ticket sales. Because the "access" to the Ticketmaster Web site was "unauthorized," Ticketmaster alleged, the "use" of the copyrighted materials on that site were without a license, and therefore infringing.

The court also found it likely that the defendants circumvented technological measures designed to prevent access to copyrighted works (the Web site) in violation of the Digital Millennium Copyright Act, breached the "contract" that was the Terms of Use, and violated the Computer Fraud and Abuse Act (18 USC 1030) by making an "unauthorized access" or "exceeding authorized access" to Ticketmaster"s computers.

But did RMG Technologies really enter into a contract with Ticketmaster? Lots of cases hold that when I reasonably have access to a Web site's Terms of Use, and where such terms are not "unconscionable," my act of merely accessing the site can be deemed to constitute consent to abide by the terms -- an enforceable contract. But what if I -- Mr. Human Being -- never actually went to the site?

Flowers for Algernon

Take the case of poor Leroy Greer.

On April 18, 2007, Leroy called 1-800-FLOWERS and ordered a dozen long-stemmed red roses, with an adorable plush doll and a note that said "Just wanted to say I love you and you mean the world to me" to be sent to his girlfriend in Houston. After the flowers were delivered, he received a lovely "thank you" card mailed directly to his home, acknowledging the purchase and thanking him for his patronage -- a lovely touch.

Unfortunately for Mr. Greer, he was married. You guessed it -- his wife received that "thank you" card, saw it and called the florist, who promptly gave her the name and address of the girlfriend. A lawsuit followed, in addition to the divorce and custody proceedings, alleging that the florist violated its privacy policies by disclosing the information about the girlfriend. Mr. Greer alleged that he asked about their privacy policy over the phone and was directed to their Web site, which had terms of use that "governed the use of the Web site." Because he was ordering over the phone, he figured that he was not bound by the Web site terms of use. He was wrong. The Federal Court in Houston, Texas, found on October 16, 2007, that the language in the Web site's Terms of Use that required all lawsuits to be filed in New York was binding on Mr. Greer. So much for romantic gestures.

However, what this case establishes is that a real person need not have read or even accessed a Web site containing the terms of the contract in order to be bound by its terms. It seems to suggest that as long as you can be aware that there is a Web site, even if you never use it, and that you are aware that that Web site might have terms of use, you may be bound to them. Note that this is directly contrary to the Northwest Airline Web site privacy litigation a couple of years back where people sued the airline for violating its own privacy policy and where the court held that, absent an allegation that a person had actually read and relied on the policy, you could not sue the airline for violating its own policy (for example, if you made your reservation over the phone, you were out of luck).

Wayback Liabilty

All of this is reminiscent of a case that took place in Colorado earlier this year. Suzanne Shell maintained a Web site called www.profane-justice.org ("Profane Justice") in Colorado, which she said was devoted to providing information, services, and other advocacy on behalf of individuals accused of child abuse or neglect. Shell's Web site was registered with the U.S. Copyright Office. Shell's Web site contained a copyright notice, stating that:

IF YOU COPY OR DISTRIBUTE ANYTHING ON THIS SITE - YOU ARE ENTERING INTO A CONTRACT. READ THE CONTRACT BEFORE YOU COPY OR DISTRIBUTE. YOUR ACT OF COPYING AND/OR DISTRIBUTING OBJECTIVELY AND EXPRESSLY INDICATES YOUR AGREEMENT TO AND ACCEPTANCE OF THE FOLLOWING TERMS:

These terms include charging the user $5,000 for each individual page copied "in advance of printing," granting Shell a perfected security interest of $250,000 "per each occurrence of unauthorized use" of the Web site in all of the user's land, assets and personal property, the user agreeing to pay "$50,000 per each occurrence of failure to pre-pay" for use of the Web site, "plus costs and triple damages," and agreeing to waive numerous defenses in any claims by Shell against the user. The copyright notice was accessible through an icon located on Shell's Web site. In many ways, Shell's copyright notice was not much different from Ticketmaster's terms of use. Indeed, in some ways it was predicated expressly on copyright law -- not implied by the terms of use.

The "Internet Archive," a service that copies any publicly accessible Web sites using technology called "The Wayback Machine" (with apologies to Peobody and Sherman), made automated copies of Shell's Web site in violation of the posted "Copyright Notice." According to Shell, the Wayback machine contacted and reproduced the contents of her Web site approximately 87 times between May 1999 and October 2004 and displayed her entire Web site to the public daily during that time period. Shell emailed Internet Archive requesting that her Web site contents be removed from the Wayback machine. Internet Archive did so. Shell also demanded payment of $100,000 from Internet Archive and threatened to sue if Internet Archive failed to pay. Internet Archive preemptively sued Shell in Colorado to get a court to declare that they did not owe the money.

Internet Archive argued that while its Web browser accessed Shell's Web site multiple times, it was not in fact aware of the terms of use, and Shell had no proof that any person at Internet Archive saw the copyright notice. Absent such actual knowledge, Internet Archive contended, there cannot be a contract.

The court effectively punted on this one, stating that there was not yet a factual record upon which it could determine whether the language was actually seen by anyone at the Archive, but it allowed the case to proceed. The court noted "[w]hile Internet Archive may be correct that the absence of human consent to this contract dooms Shell's claims, Shell has not had the opportunity to develop a factual record on this point. Shell has alleged the existence of a contract, breach and damages, which is sufficient to make out a claim for breach of contract." Ultimately the case was dismissed by stipulation of the parties in May, 2007. Hackers began shooting off emails to Shell with threats of hacking her site, calling her a "moron," a "stupid whore," a "retard," and calling her lawsuit "a joke," climaxing with a threat to murder and sodomize Shell's children.

Computer Contracts?

So what is the distinction between what Ticketmaster did and what Ms. Shell did? Why should the "Ticket Broker Automated Tool" bind its author to the terms of the Ticketmaster Web site (without evidence that a human read the terms) and the Wayback Machine not be bound? Can automated actions by our digital doppelgangers bind us mere mortals?

The answer is not an easy one. If I have a Web site -- particularly one with copyrighted material on it -- I have a right to put limitations (even unreasonable ones) -- on the access and use of that Web site. I can get you to agree to access the site only on alternate Thursdays when there is a full moon. Companies routinely put in a host of terms in TOSs, TOUs, Privacy Policies, and EULAs that we mortals might consider to be unreasonable. The question here is not "are the terms reasonable?" or "are the terms enforceable?" but ultimately, "can it reasonably be said that I agreed to them?" Just because I agreed to unreasonable terms doesn't mean that they are enforceable, but that is a separate question.

Under traditional contract law you can agree to the terms of a contract expressly by word ("sign here") or ("click 'I agree.'") You can also agree to the terms of a contract by a certain bargained for action. For example, "by entering these premises, you agree to be bound by the rules of decorum which are clearly posted here" You don't have to come in, but if you do, you are likely bound.

Most cases of "clickwrap" contracts revolve around whether the terms of the agreement are clearly and conspicuously posted, whether a reasonable person could have been aware of them, and then only secondarily, whether they are either reasonable themselves or whether a person has a reasonable alternative to the goods or services provided. In those cases, the fact that the terms can be read generally precludes a defense of "I didn't read it."

The problem for automated or robotic actions is that the robot -- unless sent out for that purpose -- has neither the ability nor the intention of binding its creator. Science fiction writer Isaac Asimov's First Law of Robotics is "A robot may not injure a human being or, through inaction, allow a human being to come to harm." I presume Asimov included legal as well as physical harm in this rule. Imagine a circumstance where I send you an email that says, "If you agree to [whatever] just hit 'reply.'" If you actively hit reply because you intend to be bound, then you likely are. If you accidentally hit reply, you can probably argue no intent to be bound, unless you get the benefit of the bargain and do nothing. But what if you have an "autoreply" agent on your email? Since there was no "meeting of the minds" you would likely argue that you were not bound because you never read the inbound email which made you bound. Chicken? Egg? Who knows.

Remember the Second Law of Robotics? "A robot must obey orders given to it by human beings except where such orders would conflict with the First Law." If you send out a spider, a worm, or an autobot, and it is just following your directions, aren't you bound?

As a practical matter, we can expect courts to say that you can't avoid contract liability simply because you used an automated program. Fair enough. If you as a human know or are reasonably aware of contract terms or conditions, you can't write a program to get around them. Unfortunately, the court will likely next look at whether the terms on the clickwrap contact are "reasonable." Like I said before, that's all well and good if I agreed to the terms -- which is the real issue for a court to decide.

Ultimately, if all of these terms and conditions, EULA's, and the like are to be considered enforceable, they will have to be enforceable against humans and their avatars. Asimov had to add a "Zeroeth" Law of Robotics: "A robot may not harm humanity, or, by inaction, allow humanity to come to harm."

Too bad that doesn't apply to lawyers.