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University of Chicago Law Review

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1395

Abstract

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 that we don’t read it and, even if we did, that 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, guild-captured 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 fine print from sharing-economy firms that seem intended to actually communicate with and manage users.

The drafters of these clauses claim that they successfully deployed the fine print by trading on their brands and identities and by giving up on certain exculpatory defenses. I argue that the resulting terms may point toward a new form of relational contracting, taking on attributes of both mass adhesion contracts and longer-term deals

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