Specht V. Netscape Communications Corp. - Facts

Facts

• The plaintiffs allege that SmartDownload transmitted to Netscape the URL of the file being downloaded along with a HTTP cookie and a 'key' (similar to a cookie) that would identify the user of the computer.
• Five of the six plaintiffs downloaded Netscape Communicator, which consists of Netscape Navigator and other web software, from the Netscape website, and all five of them acknowledge that they clicked 'Yes', indicating assent to the terms of the click-wrap license agreement for Communicator. This is not to be confused with accepting the license agreement for SmartDownload.
• When downloading SmartDownload, there was no click-wrap presentation. After downloading the software, there was no further information about the plug-in or the existence of license terms. The reference to license terms was only visible if the plaintiffs scrolled down beyond the Download button.
• The SmartDownload license contained a provision requiring disputes related to the agreement to be submitted to arbitration.
• The plaintiff Christopher Specht never downloaded or used SmartDownload. He operated a website that provided files for download. He alleged that the defendants intercepted information every time users downloaded files from him using SmartDownload.
• The defendants allege Specht received a direct benefit under the SmartDownload license agreement, enough so that he should have to arbitrate his claims pursuant to the license terms. Specht claims that he never received any commission for providing files for download.