Overstock Told That 'Browserwrap' Agreement Is Unenforceable

from the or-is-it? dept

It's still not entirely clear what online agreements are actually enforceable and which aren't. We've seen cases go both ways, with a recent ruling even noting that terms that are a hyperlink away, rather than on the agreement page itself, may be enforceable. But the latest case, involving online retailer Overstock went in the other direction. A court found that Overstock's arbitration requirement was unenforceable, because, as "browserwrap," the user was not adequately notified. Eventually, it seems that someone's going to have to make it clear what sorts of online terms are actually enforceable (if any). Until then, we're going to see a lot more lawsuits like this one.

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UK ISPs Looking To Work With Entertainment Industry; But What About Consumers?

from the something's-missing... dept

Slashdot points us to the news that, over in the UK, various ISPs are closing in on some sort of an agreement to "deal with" unauthorized file sharing. A representative for the ISPs notes:

"Some kind of agreement between rightholders and ISPs can be reached. Everyone wants to work together to make legal online models work."

Of course, that's rather misleading on a few significant points:

• It's not everyone who is working together here. Consumers are entirely left out of the equation. Consumers end up being worse off in these scenarios, and open to losing their internet access or potentially other charges due to weak evidence. Plus they end up paying more for less music.
• Musicians in many cases (the labels certainly don't represent musicians' interests) are being left out here -- especially those musicians who have learned how to embrace free music and use it to their advantage. Those musicians will end up getting punished for their innovation by having industry agreements backstop obsolete business models.
• There's no reason why ISPs should be involved. The recording industry's problem isn't that ISPs aren't helping out, but that the recording industry refuses to recognize the changing market that necessitates a different business model.
• An agreement, inevitably means both sides gave up something, and it continues the myth that business models in this market are antagonistic. It ignores the fact that there are win-win business models, such as those employed by Trent Reznor, where no one is worse off. Instead, these sorts of agreements make everyone worse off.

Rather than trying to come to any "agreement," it's about time that the entertainment industry realizes that the market dynamics have changed -- for the better -- and if they looked around they'd realize there are tons of opportunities to embrace. Instead, they're focused on locking down old business models, shrinking the overall potential market and making the overall situation worse for everyone.

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