Specht v. Netscape Communications Corp.
United States Court of Appeals, Second Circuit
306 F.3d 17 (2002)
Unlike Netscape's (defendant) Communicator software, which required users to view and accept a license before downloading, its SmartDownload software presented users only with a visible "download" button, with a link to license terms (including an arbitration clause) visible only if users scrolled down, which the plaintiffs never did; when sued over SmartDownload's alleged privacy violations, Netscape moved to compel arbitration, and the district court held the users were not bound by the SmartDownload license.
Whether an offeree is charged with having inquiry notice of, and thus bound by, inconspicuous license terms displayed in a format that would not be obvious as contractual to a reasonably prudent offeree.