Unlocking the Power of Aspen

Unlocking the Power of Aspen: Protecting Creators' IP in Web3 Transactions

Welcome, creators! In the exciting realm of Web3, it's crucial to safeguard your intellectual property (IP) when engaging in online purchases. Understanding the technical and legal aspects of terms of use and terms and conditions is paramount. Fortunately, Aspen's legal plug-in is here to empower you and ensure your IP remains secure.

To navigate the complex landscape of online contracts, it's essential to explore the different types of agreements and contracts. Let's dive in and understand the intricacies to establish a solid foundation of knowledge.

Consider this scenario: You're an artist, and a collector is interested in purchasing one of your mesmerizing paintings. In a traditional brick-and-mortar setting, the collector would visit your art gallery, select a painting, and proceed to the cashier. Just before finalizing the purchase, you would present the collector with a document titled "Terms of Sale." This document would outline vital details about the painting, including policies such as where it can be displayed. Once the collector signs the terms, a legally binding contract is formed.

Now, let's shift our focus to the digital realm. The collector visits your online gallery, adds the desired painting to their virtual shopping cart, and proceeds to checkout. At this point, you present them with your "Terms of Sale" on the website. To proceed, the collector must actively click a box or button indicating that they have read and accepted the terms. These are known as "clickwrap" terms, akin to the collector signing the physical Terms of Sale document, but in a digital format. This streamlined process ensures that the buyer is bound by the terms, regardless of whether they have read them.

On the other hand, we have "browsewrap" terms. In this case, the terms are made available to the buyer before completing the purchase, usually through a link. Unlike clickwrap terms, browsewrap contract terms are not displayed to the buyer directly, nor do they require the buyer's explicit agreement through active clicking. This raises concerns regarding the enforceability of these terms. Courts often scrutinize whether the link to the terms was appropriately placed and readily noticeable. Without clear and conspicuous notice, the enforceability of browsewrap terms becomes uncertain.

To shed light on this, let's examine some court cases that highlight the importance of conspicuousness and notice in online contracts. One notable case involved Netscape, a popular early internet browser. Netscape's website allowed users to download software subject to certain terms. However, to access the browsewrap license terms, users had to scroll down beyond the button that downloaded the software. The court ruled that a normal person would not have known to scroll down and find the terms, rendering them unenforceable.²

In another case, the court found that the browsewrap terms did not provide sufficient notice. The link to the terms, titled "More Plan Details," was displayed only after the customer clicked the "Buy Now" button.³ Even if the customer followed the link, the terms were only displayed after clicking another link to the "member contract." The court concluded that the placement of the links and the overall website layout failed to provide adequate notice to the customer. Consequently, the terms were deemed unenforceable.

Courts play a crucial role in evaluating the validity of online contract terms. They emphasize the importance of presenting terms in a clear and conspicuous manner, ensuring that a normal person would readily notice and understand them¹. This is particularly significant when individual users, rather than large businesses, are involved. Courts are keen to protect individuals from hidden or unclear terms.

Now, let's circle back to Aspen's legal plug-in and how it can alleviate your concerns about enforceability. By implementing Aspen, you can leverage the gold standard of clickwrap terms. This process requires your customers to take affirmative action, actively acknowledging and agreeing to your terms. The advantage of clickwrap terms is twofold: it ensures customers' consent and provides you with concrete evidence that they agreed to the terms. No more uncertainty or unenforceable agreements! With Aspen, you can confidently establish legally binding contracts, even within the dynamic realm of Web3.

Let's revisit the earlier example involving Google. The company sells advertising on its website and presents its standard terms ⁴ in a prominent, scrollable window. The terms are clear, accompanied by a bold statement instructing users to carefully read and agree to them. To proceed with their advertising purchase, users must click an "I agree" button. The court ruled in Google's favor, stating that the terms were properly presented and, therefore, enforceable.

Embracing Aspen's legal plug-in empowers you to protect your IP within Web3 transactions. By presenting clear and accessible terms through clickwrap, you can establish agreements that hold up in court, providing you with peace of mind as you navigate the dynamic world of online commerce.

Creators, don't leave your IP vulnerable in the uncharted territories of Web3. Embrace Aspen's legal plug-in and allow it to be your steadfast ally in safeguarding your creations. With Aspen by your side, you can focus on what you do best: creating amazing products and sharing your creativity with the world. Happy selling!

¹ For any lawyers reviewing this document, it was a reasonable person standard.
² Specht v. Netscape Communications Corporation, 306 F.3d 17 (2d Cir. 2002)
³ Savetsky v. Pre-Paid Legal Services, Inc., 2015 WL 604767 (N.D. Cal. 2015)
⁴ Feldman v. Google, Inc., 513 F. Supp. 2d 229 (E.D. Pa. 2007)