court specifically distinguished the Specht
case based on the Specht
case, "that of consumers invited to download free software from an internet site that did not contain a plainly visible notice of license terms." Notably, the dispute in Ticketmaster
involved two companies that operated online businesses, while the dispute in Specht
involved consumers. Accordingly, the Ticketmaster
court's conclusion may be based, in part, on the fact that both parties were sophisticated users who could be presumed to understand the complexities of online agreements. Moreover, the website operator in Ticketmaster
case, the website at issue was modified insider to place a flashing warning at the top of the website's home page, explaining that further use of the website bound the user to the conditions. Unlike the warning in Specht
, which could be found only if users scrolled down the screen, the modified warning in Ticketmaster
"could not be missed," according to the court.
Despite the factual differences in the two cases, the Specht and Ticketmaster decisions each suggest that website operators should enhance the prominence and specificity of references to their terms and conditions of use in order to improve their enforceability. Moreover, while the Ticketmaster order denying summary judgment suggests that online agreements may be enforceable against certain users (such as other online businesses) even in the absence of an unmistakable indication of assent (such as clicking an "I agree" button) if the user had actual notice as a factual matter, it is becoming increasingly clear that courts will look for such indications of assent in their consideration of whether the agreements are enforceable.