Electronic Contracts: A Law Unto Themselves?

Abstract

Electronic contracts, however described, are everywhere in the digital environment. In computer games, they govern the relationship not only between the gamer and the game publisher, but the gamer and the game. Yet, despite their ubiquity, their substantive content receives relatively little attention. Consumers assent without reading them, and publishers and their lawyers adopt oppressive contracts, seemingly without thought for the rights of their customers. Whether a market failure or a rational response, electronic contracting seems to be stuck in a vicious cycle of apathy and indifference. This paper explores these issues, as well as examples of games-related electronic contracts, common terms in such contracts, and how those contracts might be affected areas of law including contract, copyright, competition and consumer protection. Might these areas of law provide a stimulus for ‘clickwrap reform’?