Law for Business 12th Edition by James Barnes,Terry Dworkin,Eric Richards

Exercise 4

RealNetworks offers free basic versions of two products, RealPlayer and RealJukebox, for users to download from RealNetworks' site on the World Wide Web. These products allow users to see and hear audio and video available on the Internet and to download, record, and play music. Before a user can install either of these software packages, he or she must accept the terms of RealNetworks' End User License Agreement, which specifically requires that any unresolved disputes arising from the agreement must be submitted to arbitration in the state of Washington. After using RealNetworks' products and consenting to the terms of the License Agreement, Michael Lieschke read a New York Times article, which stated that RealNetworks' products collected personal information about users' listening habits and places they had visited on the World Wide Web and sent the information to RealNetworks via the Internet. Lieschke then filed a lawsuit in Illinois against RealNetworks for trespass to property and privacy, alleging that the company's products allowed it to access and intercept his electronic communications and stored information without his knowledge or consent. RealNetworks asserted that the court lacked jurisdiction to decide the case because the License Agreement required the dispute to be arbitrated in Washington. However, Lieschke argued that the arbitration clause was not binding because federal law requires that agreements to arbitrate be written in order to be enforced. According to Lieschke, the License Agreement is an electronic agreement and electronic agreements do not satisfy the "written" agreements provisions of the Federal Arbitration Act. Does the electronic License Agreement constitute a writing? Explain the process by which a court would answer this question.