The AiCE project began with a conviction that there is a more efficient method to manage disputes arising from alleged abuse of browsewraps. Thus, cases such as the fairly recent Cvent v. Eventbrite are of interest, notwithstanding that their instructive quality is somewhat lacking for conclusively resolving the now decade-old question of whether these agreements are enforceable.

Casual observation reveals a spectrum of opinion on this matter: We see those who argue that browsewraps should be enforceable because the law, after all, recognizes contracts formed by implied assent (cf. ProCD upholding shrink-wraps). Others that advocate a narrower application, reserved solely for b2b settings and as between competitors. And then there are those who decry browsewraps in their entirety: Identifying them as a destructive dilutive to the centricity of the role mutual assent must play in proper contract formation.

Shrink-wrap licenses are similar to browsewraps. Relative to the legally-effective click-throughs, the common denominator between them is their hidden quality and both rely on a finding of implied assent for enforceability. As between those two, the shrink-wrap captures first place in the invisibility contest and yet, paradoxically, comes out the winner in the enforceability contest. Surely a curious result considering that it is the browsewrap that should be seen as standing the higher chance of discovery (through hyperlinks, proper placement, bots, text search, etc.). Perhaps one of the reasons this is so is due to buyer and judiciary conditioning. Perhaps another can be attributed to the dilemma of who is the offeror and who the offeree when, for example, a software box is presented for sale at the local Best Buy.

If it is true that conditioning is the secret enforceability ingredient, then a similar argument can be advanced to assist the embattled browsewrap. Even if we initially confine the analysis to b2b transactions (which is where the majority of the problems appear to be) we can discern an intrinsic reasonableness to a core presumption: Competitors accessing each other’s websites know, or at the very least should be deemed to know that the other’s party’s content, while arguably enjoying protections accorded by copyright law, is nonetheless of commercial, competitive interest, one which that party desires to protect and should have a right to do so. Can/should courts be conditioned to this presumption?

We’re certainly not there yet and I doubt that such a conclusion could ever enjoy widespread adoption. Ten years have gone by (the numerical value of which is magnified by the internet’s time prism) and browsewraps remain suspect. This status is not entirely lamentable as it strengthens the prospects for deploying AiCE as a new, efficient means by which to monitor and enforce use of website content. And for those who fear such deployment spells an inevitable death knell to maximizing access to content on the web, rest assured that this is not the intent and unlikely the outcome. Content owners who deploy AiCE will have at their disposal a tool by which to more effectively share information.

This efficiency is derived from (primarily) two dimensions: From the content owner’s perspective, it allows her to better control which portions of the content are freely available. (This of course, assumes compatibility, and more on that in a second.) From the judiciary perspective, it disposes of the need to launch into a human-centric exercise of looking for assent to terms in cases where no human being access to the site even occurred. After all, the reported cases I am aware of do not involve bot-masters that design their bots to be able to read and understand browsewraps. Which now brings me to comment on bot-browsewrap compatibility: Where a bot-master deploys a bot that is unable to interface with a browsewrap (and in the future, AiCE), courts should adopt a strict liability-type approach and find the bot-master having assented to the terms. In other words, the designed avoidance and willful ignorance associated with deploying such a “blind” bot should amount to a non-rebuttable presumption of implied assent to the terms. In other words, the bot’s deployer should not be rewarded with a traditional inquiry that prizes the centricity of mutual assent.

In sum, had the Cvent case been decided in a time where AiCE is an acceptable web-content gatekeeper, the de facto standard, I expect a different result would have been reached. That is, the court would have likely disposed of the need to spend time inquiring into facts demonstrating mutual assent.