In a recent Massachusetts ruling, the court upheld the validity of a “browsewrap agreement”, a type of agreement that websites are commonly using. Unlike the “click-through agreement” which makes a user actually click “I agree” under the terms and conditions, and therefore actively choose to agree to the terms and conditions, a “browsewrap agreement” merely contains the terms and conditions as part of the creation of a user account. The user never actually actively agrees to the terms and conditions.

The plaintiff in this case found that his content was being used by the website and brought a copyright infringement suit against the owners of the website. However, under the terms and conditions of, a user of the website assigned the copyright to the company. The plaintiff’s argument was that he never actually agreed to the terms and conditions because he never affirmatively clicked anything that signaled his agreement. The court disagreed, and held that by using the website, he had agreed to the terms and conditions. They were clearly available for him to read when he created an account, and the fact he did not read them was not the fault of the defendant. (This is typical in contract law. Whether or not you actually read the contract is your fault, and cannot be used against the other party.)

This ruling is extremely important for artists, galleries, and others who use websites to market their works.  It goes without saying that the intellectual property of an artist’s work can be just as, or even more valuable, than the work itself. Frankly, it is rather disturbing that the court upheld such an agreement, because at least with the “click-through agreement” the terms and conditions are put in front of the user. The user has to actively scroll through, and knowingly decide not to read the agreement. A “browsewrap agreement” merely provides a link to the terms and conditions, and never actually puts the content in front of the user.  It is critical that whenever you post your content to a third party website, that you read the terms and conditions carefully to make sure you are not assigning the copyright to your works, and thereby giving up a valuable piece of your livelihood.