
Specht v. Netscape: Counter Offers and the Absence of "Clickwrap"
Yale law professor Ian Ayres walks through Specht v. Netscape, a case from his American Contract Law course dealing with how courts decide whether a counter offer has been accepted. The dispute centers on Netscape's SmartDownload software, offered without the kind of clickwrap agreement that forces a user to click "I agree" before installing. Ayres uses the case to test the boundaries of the bargain relationship, asking what a company must actually do to put contract terms in front of a user before those terms can bind them. He works through the Ninth Circuit's reasoning on notice, assent, and the burden on a party trying to impose conditions buried below a download button. The lecture is short and pointed, treating Specht as a lesson in what separates an enforceable counter offer from terms nobody ever really saw. It is drawn from Ayres' Coursera-based Contract Law series and assumes some familiarity with prior sessions on offer and acceptance.