Feldman(F) v Google(D) Inc. (2007)
United States District Court
F: In Jan 2003, plaintiff (firm owner), purchased advertising from defendant’s “AdWords.” Whenever certain words would be searched on Google, plaintiff’s ad would appear and the plaintiff would be charged by each click (pay per click). The highest bidder for keyword would have ad placed at top of search page words of drugs. Allegedly, the plaintiff was the victim of cliff fraud, in which competitors or pranksters click on the ad, driving up cost to advertise, and that the defendant required him to pay for all the clicks. Plaintiff claims that there are programs to locate fraudulent clickers, not that the defendant was aware of the tick clicks. The defendant charged the plaintiff over $100,000 from January 2003-December 2005 and has moved to seek damages, relief of profits the defendant procured, and relief of money from fraud clicks.

I: Is an online clickwrap contract enforceable when the agreement has to be accepted in order to initiate a contract, referring to form selection clause, and when it does not specifically define a price?

H: Yes. When the party has been given reasonable notice and it is clear they must click on the agreement to move forward and when the contract defines a method to determine price then the contract is valid.

R: The Court relies on the precedent of Specht v. Netscape Comms Corp., in which the court determined that “clickwrap agreements are considered to be writings because they are printable and storable” and further uses the precedent of Forrest v. Verizon Comm. (and others) to determine if the clickwrap was enforceable. In order to be valid the plaintiff must had had “reasonable notice of and manifested assent” to the agreement. The Court distinguished Specht here because Specht dealt with a situation in which the plaintiffs had no forknowledge that clicking the