About the legal meaning of clicking on the button “Buy”, “Accept the terms of the license agreement”, etc.
In the modern world, with the help of the Internet, various deals are made and various goods are sold (in an economic sense), both tangible and intangible (software, music, movies and other intellectual property). The process of buying them for the end user looks like clicking on a button on the screen of a computer or a smartphone that says "Buy", accept, confirm, and the like. Sometimes for the purchase you need to enter a special code received by SMS.
The post is an attempt to present this information in understandable language.
Firstly, I would like to note that a computer program, music, film, etc. are objects of copyright or related rights, and from a legal point of view, transactions with them are not contracts of sale, but are contracts of licensing, because the user is not transferred a tangible thing, but useful information on any carrier or without any carrier. According to the Civil Code, programs and other intellectual benefits cannot be sold, but can only be licensed for a fee or free of charge. Licensing means granting the right to use the program. This is enshrined in article 129 part 4:
Selling a program is a philistine term, and using it you should not forget about it.
Under the contract of sale only the material thing can be sold, such contracts are concluded in online stores.
This distinction is of great legal importance, since different laws are applied to contracts for the sale and licensing. To the first, for example, articles 454 - 566 , to the second, articles 1255 - 1302 GK .
The Civil Code was written at a time when the Internet was not distributed, and the authors of the Code could not even assume that goods would be sold and licensed through the Internet. According to the Code, the vast majority of transactions concluded on the Internet would have to be in writing. This follows from the provisions of Article 161 of the Civil Code:
Those. it turns out that online stores and app stores, being legal entities, must sign a written contract with the user, but this kills the very idea of commerce on the Internet. How to get around this limitation and protect the rights of the right holder, seller or user in court? Just below this question will be disclosed.
The legislator in Article 160, p. 2, equates to a contract on paper, a contract concluded using an electronic signature, but this is not a big relief because the user needs to carry out a long series of technical and legal formalities to obtain such a signature. :
Also, since October 1, 2014, the legislator has given some relief in the case of software licensing (Article 1286, Part 5):
But what about the licensing of music or movies, as well as sales of things via the Internet? We all know the situation in practice, where such deals are made by pressing a button on the screen. What is the pressure from the point of view of the legislator? The answer to this question is disclosed in article 158:
Pay attention to part 2. From pressing the user on the "Buy" button, it follows that he wants to buy a product, "Accept the terms of the agreement" - to enter into a license agreement. This action is considered taciturn , i.e. It is believed that the user is verbally agreed with the copyright holder or the seller.
There is a failure to comply with the mandatory written form of the transaction. What consequences are provided for such non-compliance? They are disclosed in article 162:
In these two paragraphs it is meant that if in any law it is written that any type of contract is invalid, if it is concluded in writing, then clicking on the “Accept” button does not have any legal consequences. If there is no such provision in the laws for a specific type of contract, it is simply written that “ Contract of XXX type must be concluded in writing ”, then the contract is valid, but in the event of a dispute, the parties are denied the right to refer to witnesses who can confirm that they are saw how this contract was made.
To alleviate the entire IT community, there are no such invalidation clauses for licensing contracts for music, films, etc. (Art. 1286 part 2 of the Civil Code), nor for contracts of sale. And the only sanction for non-compliance with the mandatory written form in the event of a dispute is the impossibility to bring witnesses in court. However, you can use other evidence of the transaction, for example:
It should be noted that, nevertheless, there are types of contracts for which an oral conclusion entails full legal invalidity. These include, for example, the provisions of the penalty. Here is how it looks in the text of the Code:
Penalty is, if you simplify, the penalty prescribed in the contract for its violation. Thus, if you registered in the license agreement with the user any penalty for violating it, for example, hacking software protection tools, then if there is no written agreement with the user or an agreement concluded using an electronic signature, the penalty clause may be recognized by the court as null and void. Naturally, this does not mean that the user can do whatever he wants. Its permissible actions are still limited by law, for example, the Civil and Criminal Codes, as well as the Law on Copyright and Related Rights.
Here, in general, and everything that I wanted to write about this. If you have any questions or comments, you write them in the comments, I will try to answer them.
The post is an attempt to present this information in understandable language.
Firstly, I would like to note that a computer program, music, film, etc. are objects of copyright or related rights, and from a legal point of view, transactions with them are not contracts of sale, but are contracts of licensing, because the user is not transferred a tangible thing, but useful information on any carrier or without any carrier. According to the Civil Code, programs and other intellectual benefits cannot be sold, but can only be licensed for a fee or free of charge. Licensing means granting the right to use the program. This is enshrined in article 129 part 4:
Article 129. The turnover of civil rights objects
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4. The results of intellectual activity and the means of individualization equal to them (Article 1225) cannot be alienated or otherwise transferred from one person to another. However, the rights to such results and funds, as well as tangible media in which the relevant results or funds are expressed, may be alienated or otherwise transferred from one person to another in cases and in the manner established by this Code.
Selling a program is a philistine term, and using it you should not forget about it.
Under the contract of sale only the material thing can be sold, such contracts are concluded in online stores.
This distinction is of great legal importance, since different laws are applied to contracts for the sale and licensing. To the first, for example, articles 454 - 566 , to the second, articles 1255 - 1302 GK .
The Civil Code was written at a time when the Internet was not distributed, and the authors of the Code could not even assume that goods would be sold and licensed through the Internet. According to the Code, the vast majority of transactions concluded on the Internet would have to be in writing. This follows from the provisions of Article 161 of the Civil Code:
Section 161. Deals Made in Simple Written Form
1. Must be made in simple written form, with the exception of transactions requiring notarization:
1) transactions of legal entities between themselves and with citizens;
2) transactions of citizens among themselves in the amount exceeding ten thousand rubles, and in cases provided by law, regardless of the amount of the transaction.
2. Observance of simple written form is not required for transactions that, in accordance with Article 159 of this Code, can be made orally.
Those. it turns out that online stores and app stores, being legal entities, must sign a written contract with the user, but this kills the very idea of commerce on the Internet. How to get around this limitation and protect the rights of the right holder, seller or user in court? Just below this question will be disclosed.
The legislator in Article 160, p. 2, equates to a contract on paper, a contract concluded using an electronic signature, but this is not a big relief because the user needs to carry out a long series of technical and legal formalities to obtain such a signature. :
Article 160. The written form of the transaction
2. The use of facsimile reproduction of a signature by means of mechanical or other copying, electronic signature or other analogue of a handwritten signature is allowed in the cases and in the manner prescribed by law, other legal acts or agreement of the parties.
Also, since October 1, 2014, the legislator has given some relief in the case of software licensing (Article 1286, Part 5):
Article 1286. License agreement on granting the right to use the work
5. A license agreement with a user to provide him with a simple (non-exclusive) license to use a computer program or database may be entered into in a simplified manner.
A license agreement concluded in a simplified procedure is an accession agreement, the terms of which, in particular, may be set forth on the purchased copy of a computer program or database or on the packaging of such a copy, as well as in electronic form (clause 2 of Article 434). The beginning of the use of a computer program or database by the user, as determined by the specified conditions, means his consent to the conclusion of the contract. In this case, the written form of the contract is considered to be complied with.
A license agreement concluded in a simplified procedure is gratuitous, unless the agreement provides otherwise.
But what about the licensing of music or movies, as well as sales of things via the Internet? We all know the situation in practice, where such deals are made by pressing a button on the screen. What is the pressure from the point of view of the legislator? The answer to this question is disclosed in article 158:
Section 158. Form of Transactions
1. Transactions are made orally or in writing (simple or notarial).
2. A transaction that can be made orally is considered to be completed even if it is clear from the behavior of the person his will to complete the transaction.
3. Silence is recognized as an expression of the will to make a deal in cases provided for by law or by agreement of the parties.
Pay attention to part 2. From pressing the user on the "Buy" button, it follows that he wants to buy a product, "Accept the terms of the agreement" - to enter into a license agreement. This action is considered taciturn , i.e. It is believed that the user is verbally agreed with the copyright holder or the seller.
There is a failure to comply with the mandatory written form of the transaction. What consequences are provided for such non-compliance? They are disclosed in article 162:
Article 162. Consequences of non-observance of the simple written form of the transaction
1. Non-observance of the simple written form of the transaction deprives the parties of the right in the event of a dispute to refer to the evidence of the transaction and its conditions on the testimony, but does not deprive them of the right to present written and other evidence.
2. In cases expressly specified in the law or in the agreement of the parties, failure to comply with the simple written form of the transaction entails its invalidity.
In these two paragraphs it is meant that if in any law it is written that any type of contract is invalid, if it is concluded in writing, then clicking on the “Accept” button does not have any legal consequences. If there is no such provision in the laws for a specific type of contract, it is simply written that “ Contract of XXX type must be concluded in writing ”, then the contract is valid, but in the event of a dispute, the parties are denied the right to refer to witnesses who can confirm that they are saw how this contract was made.
To alleviate the entire IT community, there are no such invalidation clauses for licensing contracts for music, films, etc. (Art. 1286 part 2 of the Civil Code), nor for contracts of sale. And the only sanction for non-compliance with the mandatory written form in the event of a dispute is the impossibility to bring witnesses in court. However, you can use other evidence of the transaction, for example:
- Proof of receipt of an SMS with a special code on the user's number and its introduction to gain access to the subject of the contract;
- Evidence of the fact of downloading the file with the subject of the license agreement from the copyright server to the user's computer;
- Proof of the user's registration in the system provided for the use of the subject of the license agreement with the user voluntarily entering his identification data and evidence of the use of such a system by the person;
- Evidence of the transfer of funds by the user to the account of the copyright holder or the seller
- Proof of delivery in the case of an online store and so on.
It should be noted that, nevertheless, there are types of contracts for which an oral conclusion entails full legal invalidity. These include, for example, the provisions of the penalty. Here is how it looks in the text of the Code:
Section 331. Form of Agreement on Forfeit
The penalty agreement must be made in writing, regardless of the form of the underlying obligation.
Failure to comply with the written form shall entail the invalidity of the agreement on the penalty.
Penalty is, if you simplify, the penalty prescribed in the contract for its violation. Thus, if you registered in the license agreement with the user any penalty for violating it, for example, hacking software protection tools, then if there is no written agreement with the user or an agreement concluded using an electronic signature, the penalty clause may be recognized by the court as null and void. Naturally, this does not mean that the user can do whatever he wants. Its permissible actions are still limited by law, for example, the Civil and Criminal Codes, as well as the Law on Copyright and Related Rights.
Here, in general, and everything that I wanted to write about this. If you have any questions or comments, you write them in the comments, I will try to answer them.
Source: https://habr.com/ru/post/290096/
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