Since a license agreement/terms of use document is a contract between the publisher and the end-user, and since minors are prohibited from entering into legally binding contracts in most U.S. states, how can any sort of terms be legally enforceable?

The inability to agree to license terms has all kinds of potential legal ramifications. For example...

  • App store agreements from Apple, Google, Amazon, etc. specify that parents are responsible for the in-app purchases of their children. Can parents be held liable if their child creates their own account without their parents' consent?
  • Can a company seek damages arising from an activity where such an activity is otherwise legal, but prohibited by the license (e.g. video game modding or publishing cheat software)?
  • Can a parent seek damages against a company for using data that was obtained under a waiver of rights by a license agreement (e.g. children uploading content to social media sites that would otherwise be protected by other laws)?

Also, would the story change at all if the person in question were of legal age, but legally incompetent?

  • I've seen it argued that someone as young as 13 is allowed to agree to terms-of-service (TOS). There is also the issue of just because they put it in the TOS doesn't mean that it is enforceable. I haven't seen a great deal of legal precedent in companies trying to prosecute children or the parents of children due to the stigma they would receive. Regarding your second point, Blizard/Activision is currently engaged in a lawsuit with a cheat/exploit software publisher involved in Overwatch. – Nicholas Psoras Jul 26 '16 at 4:42
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    Not sure why you believe that "minors are prohibited from entering into legally binding contracts in most U.S. states." The issue generally only arises when the non-minor parties attempt to enforce the contract. As for the "in-app purchases" scenario, the parents or guardians may be held liable for the criminal actions of their non-adult progeny/wards, e.g., "fraud", so it may be difficult for them to claim the vendor has any liability. State laws vary as to the crimes for which custodial parents may be vicariously liable. – Upnorth Aug 21 '17 at 3:16
  • Amazon recently lost such a lawsuit regarding in-app purchases made by kids. At the time, they didn't have parental controls in place for parents to block such in-app purchases by requiring a password, but now Amazon does. techcrunch.com/2017/04/05/… – Stephan Branczyk Sep 22 '17 at 8:51
  • "Also, would the story change at all if the person in question were of legal age, but legally incompetent?" Probably not. A guardian or conservator might be able to sue for recision of a transaction in exchange for not using the web based service, but the TOS is probably not automatically void ab initio. – ohwilleke Mar 22 at 0:30

Business question

Since a license agreement/terms of use document is a contract between the publisher and the end-user, and since minors are prohibited from entering into legally binding contracts in most U.S. states, how can any sort of terms be legally enforceable?

Legal question

May an online publisher enforce its product license agreement/terms of use against a minor ?

Answer

Yes, an online publisher can enforce its product license agreement/TOU against a minor until such time the minor voids the agreement.

Discussion

  1. The opinion of the court in C.M.D. v. Facebook 2014 WL 1266291 (N.D. Cal. Mar. 26, 2014), Inc. discusses this very legal question and clarified that terms of service of Facebook are enforceable against minors who use websites and further suggests that to disaffirm such terms of service, minors likely must terminate their accounts and stop using the website.

  2. The key question in front of the Judge in this case was whether the contract at issue between minors and Facebook - was one of the narrow types of contracts with minors that were void, or if the contract was merely voidable under California Family Code 6701. The court rules in favor of Facebook.

First, minors are not prohibited from entering contracts in the USA. However, any such contracts can be voided either by the minor, or by their guardian. A voidable contract is valid and enforceable until the point where it is voided.

License agreements are usually not contracts. They give the licensee permission to use a copyrighted work and make copies in certain ways; without the license making copies is only allowed as far as copyright law on its own gives you the right (which is usually not at all).

I checked Apple's App Store terms and conditions. It doesn't say "parents are responsible for in-app purchases of their children", it says that children can't enter into a contract with Apple, only their parents can.

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    "License agreements are usually not contracts." Really? I have never drafted a single end-user license that is not also intended to become a contract. Also, however Apple might choose to condition the status of those entering into contracts may be a valid basis upon which Apple may void the contract (e.g., minors, nationals of certain countries, etc). – Upnorth Jan 22 at 19:41
  • License agreements and Terms of Service are contracts, but not always contacts intended to be enforced by lawsuit in a court of law. Often, for example, they authorize self-help or clarify property ownership issues, rather than creating an executory obligation to do something in the future which will constitute a breach if it is not done. – ohwilleke Mar 22 at 0:27

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