Zappos terms of use still "browsewrap"

I already know of two good articles about how a court recently found Zappos' terms of use legally deficient - one is a blog post by Eric Goldman, the other a mailer from the Wilson Sonsini firm - so I'm not going to analyze the issues here.

But I did find myself wondering whether Zappos had changed its terms of use in the five weeks or so since the court decision came down.

Rahm Emmanuel thumbing his noseI looked last night, and the answer is: Zappos does not appear to have made any changes lately to its terms of service.

The Zappos terms of service are materially the same today as they were on a copy I found placed in May 2011 by the Wayback Machine.

I thought that was odd, because, from reading Goldman's and WSG&R's analysis, I'd gathered that Zappos' assertion that it could change the terms at any time - without notice - was fatally flawed.

But then I thought, maybe Zappos deliberately left the terms as they were, knowing it might cure the defect by a change in the shopping or ordering process. The browsewrap language - "ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, SO PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING" - might still be in the terms, but if a link to the terms and an "I accept" button were placed so as to interrupt the flow somewhere, anywhere, before finally placing an order, well, that process roadblock would turn the ostensible browsewrap (likely not enforceable) into a clickwrap (likley enforceable).

Wouldn't you know it, I registerd with the site (that was easy; I could import my Amazon profile) and ordered something, and nowhere along the way was I presented a link to the terms of use, let alone an "accept" button.

It seems to me that Zappos' terms are just as open to challenge by new users today as they were before.

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