Thank goodness the pornography industry got here before the software industry (the attendant disrepute might help kill the ever increasing recognition of clickthru EULAs as consensual contracts).

Here’s the latest wretched revenue mechanism for persuading punters to pay for the porn proactively published to them:

• Punter Wants/Vendor Offers: Vendor’s porn.
• Vendor Wants/Punter Offers: Punter’s money.

Both ‘agree’ to a EULA/‘clickthru contract’ to exchange money for porn, secured by, wait for it:

Surrender of the punter’s PC to the vendor, primarily its operational effectiveness, but also its resources as a node in a pornographic file sharing system.

See MBS Porn Billing

So, what lesson must the law relearn?

Contracts cannot be entered into ‘on approval’ by dint of inaction or ignorance. Both parties must actively demonstrate voluntary, deliberate and special expenditure of effort to make and consummate any contract – in order for the contract to be binding.

• The unwrapping of a package’s shrinkwrap does not constitute special expenditure of effort to enter into a contract beyond or distinct from the purchase of the product already made.
• A DVD player’s forced display of a DVD’s legal notices does not constitute the viewer’s acceptance or recognition of those notices.
• The opening of a book does not constitute agreement to the terms set out in the frontispiece.
• The opening of a door to a publicly accessible gallery and unopposed browsing of works exhibited therein does not constitute acceptance of an entrance fee. However, the gallery may of course deny admission to those unwilling to pay the fee.
• The unopposed web browsing of an image gallery does not constitute special expenditure of effort, irrespective of inferred acceptance of ‘clickthru contracts’.
• The clicking through of hyperlinks (whether in button form or not) does not demonstrate agreement to, reading or understanding of, any attendant terms or conditions.
• Disclaimers may be informative, but they cannot affect any relationship entered into by dint of correspondence or publication. They cannot absolve either correspondent of any responsibility they would otherwise have, nor can they impose a burden or duty upon either. Similarly the lack of a disclaimer cannot impose burdens that could otherwise have been avoided.

As I’ve said before, art worth paying for is art the audience wants to pay for. So you don’t need to trick or con the audience into paying, nor hold their PCs or privacy hostage until they do. This applies to porn as much as any art…

Porn worth paying for is porn the punter wants to pay for.