Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short: consumers are apparently regulated by digital fine print, though it’s universally assumed we don’t read it, and even if we did, we’ll never be sued for failing to perform.
On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral spurs? The conventional answer is that fine print acts as an option, drafted by dull, monopolist, lawyers. Through investigation of several sharing economy firms, and discussions with a variety of lawyers in this space, I show that this account is incomplete. Indeed, I identify and explore examples of innovative fine print that appears to really communicate with and manage users.
These firms have cajoled using contracts by trading on their brands and identities, and by giving up on certain exculpatory defenses common to digital agreements. I argue that the result is a new form of relational contracting, taking on attributes of both mass market adhesion contracts and more long-term deals.
Hoffman, David A., "Relational Contracts of Adhesion" (2018). Faculty Scholarship at Penn Law. 1882.