You may have come across software “End User Licence Agreements” before in the course of installing Adobe Acrobat, Windows or other software.  These are documents which typically require a person wishing to use software to click “I Agree” (or similar) to the terms before they are permitted to do so (called a “shrink-wrap” or “click-wrap” licence depending on whether the software is delivered on physical media or on-line).

EULAs are somewhat obnoxious from a consumer perspective in that they are non-negotiable, usually highly technical and long, and leave a consumer who does not agree to the terms in a difficult position as to whether or not they can return the software for a refund (assuming they’ve paid for it) – most retailers won’t accept software which has been opened due to piracy concerns.  In the U.S. shrink/click-wrap agreements have been upheld as being valid, although some caution has been expressed as to whether such agreements are enforceable if there is no opportunity to obtain a refund by returning the software.

In Australia there has been minimal consideration of these types of agreements, although there appears to be no reason why they would not be enforceable.  It seems likely that the same reasoning that was applied in the ‘ticket cases’ would apply to click-wrap licences – if a reasonable effort is made to draw the terms to your attention (or at lesat the fact of the existence of the terms) and you proceed, you are likely to be bound by those terms – see e.g. Parker v South Eastern Railway (1877) 2 CPD 416 and Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (the ticket cases involve terms and conditions printed on train tickets, parking tickets etc).

But what happens if you get your cat to execute a ‘click-through’ licence agreement?  One woman, Anne Loucks, decided to find out.  She has constructed an excellent cat-contract-acceptance machine whereby her cat can accept contracts by wandering onto a device placed on her keyboard.  She then arranges the device and tempts the cat into the general area with food.

Anne’s device is humorous, but it demonstrates an interesting point.  When the “meeting of the minds” (which is what a contract really is) is embodied in an action as simple as clicking a mouse, there is much greater scope for one party to argue that it did not accept the agreement.  What if an infant accepts it?  What if you are drunk when you click?  Or what if your cat accepts it for you?  If the software company wishes to enforce the agreement, it may also face difficulties in proving that you, and not some other person, clicked the magic “I Agree” box (which is, of course, one of the benefits of signatures and witnesses).  In addition, I think there are serious questions of unconscionability – if you cannot return the software no matter what, does this amount to a special disadvantage of which the software maker is taking advantage?

In this case I suspect Anne’s cat is sufficiently under her control that she would still be bound (especially as the cat will only produce one result when it walks on the keyboard, and Anne is deliberately tempting it there with food).  The ticket cases suggest that it is not strictly necessary that she read the terms, and I think that if she was aware of the fact of the existence of the terms and decided to use the software anyway, she would likely be bound by them.

Still, I’d love to see it go to court…