Help with electronic signatures.

November 16, 2005 5:31 PM

Electronic Signatures: Is a html web form with a checkbox and associated text a valid electronic signature?

Searching around, i found the wikipedia entry helpful, but not complete. EULA agreements that come with most software appear to be binding, and they seem to be essentialy the same as a web form. Is there anything keeping a web form with an EULA from being legally binding?

posted by jba to Law & Government (10 answers total)

Depends on how technical you want to get and the laws in your jurisdiction and the jurisdiction of the person accepting the offer. This is essentially contract law, and the question is "is checking a box a valid form of acceptance of the terms of a contract" (assuming that what you're proposing is a valid contract to begin with). Generally speaking, contract law provides for a wide variety of acceptances, including nods, grunts, actions and other non-verbal and non-written indications. The question you have to ask is, in court, will a judge find it reasonable that the check was a valid form of acceptance. That's why it depends on what you're asking the user to accept. Some things must be written and very formal, such as accepting indemnity or assuming debt, other things don't require that level of formality. Other considerations include whether or not the contract you're asking them to accept is fair or not, meaning did they understand what they were signing, and so on depending on the relevant statutes and common law precedents.

I would consult a lawyer if you have serious concerns, as there are a great many things that can keep a EULA from being binding.
posted by loquax at 6:32 PM on November 16, 2005

Check out this link about offer and acceptance as well as the article on contracts. While not everything applies to a EULA per se, a EULA is essentially a contract (with dubious enforceability depending on how it's written and local statutes) and I believe that a court would generally look at the same criteria to establish whether a valid contract exists.

But still, see a local lawyer, preferably a specialist.
posted by loquax at 6:56 PM on November 16, 2005

So common law contracts are all well and good, but chances are you're probably dealing with a sale of goods, which falls under the Uniform Commercial Code. The UCC does not currently deal with electronic media explicitly. Instead it merely says that the offer and acceptance may be made "in any manner and by any medium reasonable in the circumstances."

Most all courts consider what you're describing to be binding.

Revisions to the UCC (which may or may not yet have been adopted by your state) include explicit acknowledgement (and various rules for) electronic transactions. See here for the most recent revisions. Start in section 2-211.

Now, whether the terms of the EULA make it unenforceable/invalid/illegal is another matter entirely.

All that said, as loquax pointed out, see a lawyer in your state, as this sure as heck ain't legal advice.
posted by jedicus at 8:55 PM on November 16, 2005

Yeah, I'm up in Canada, so I have no idea what the UCC is all about, but it looks like the revisions that jedicus is talking about (the UCITA) has only been adopted in Virginia and Maryland, so you can't count on that (in NY, I presume).

I'd generally agree with jedicus that most courts would find a checkmark binding, but I'd ask whether you're willing to live with such a vague acceptance on the part of the other party (especially if there's no non-repudiation). Depending on the nature of what your doing, it's far better to get explicit written agreement rather than relying on courts to rule in your favour in a future conflict.
posted by loquax at 9:14 PM on November 16, 2005

So, I'm not actually talking about the UCITA, which is a whole 'nother ball of wax. The UCC exists in every state and has for decades (except in Louisiana where it was only partly adopted on account of its civil law heritage). I looked for an equivalent in Canada, but it doesn't appear that y'all have one. Some group wrote one up that deals with the sale of goods only, but it hasn't been adopted. Crazy canucks...

Anyway, since you pointed out that jba is in New York, I'll mention that the revisions to the UCC that deal with electronic transactions have not yet been adopted there.
posted by jedicus at 9:40 PM on November 16, 2005

Sorry about that jedicus, bad assumption. Yeah we have various consumer protection legislation, but nothing that compares to the UCC as far as I know. I guess we prefer judicial activism up here...
posted by loquax at 9:45 PM on November 16, 2005

Response by poster: Thanks all, great answers all around.
posted by jba at 11:17 PM on November 16, 2005

The articles found here may be very helpful.
posted by anathema at 5:32 AM on November 17, 2005

Outta curiosity, what is the current state of litigation on Eula's? Have they really been put to the test?
posted by ph00dz at 5:50 AM on November 17, 2005

Opinion is divided with regard to EULAs. There are a couple of cases upholding them and a couple that are considerably more down on them.

ProCD v. Zeidenberg is the landmark case in the US. The text of the opinion is fairly readable.

For a case in which a shrinkwrap license was not found to be binding, see Klocek v. Gateway

Note that the first opinion comes from the 7th Circuit Court of Appeals and the second comes from the District Court in Kansas. While other cases have followed the reasoning of the Klocek case, all things being equal the ProCD case has more precedential value. Because contracts are generally a matter of state law, it will probably take some time before a broad consensus is reached. This is not the sort of thing that the Supreme Court can rule on.

It's possible that revisions to the UCC may incorporate language that unambiguously defines the (un)enforceability of EULAs and shrinkwrap licenses, but changes to the UCC get adopted at about the same pace as changes in the common law, which is to say very slowly.
posted by jedicus at 8:55 AM on November 17, 2005