As the eastern part of the United States picks up the pieces from the devastating Hurricane Sandy, many companies are experiencing a classic “force majeure” event. The circumstances remind us of a blog post we wrote shortly after Irene blew our way last year, and we thought it might be worthwhile to point interested parties… Continue Reading
Category Archives: Contracts
Subscribe to Contracts RSS FeedIn Clickwrap Data Pass Contract Dispute, Second Circuit Sacks E-mail Notice of Post-Transaction Terms
Posted in ContractsIn an important opinion on the enforceability of online contract terms, Senior Circuit Judge Robert D. Sack walks through the last decade and a half of online contracting law on the way to invalidating an arbitration provision in an agreement involving a so-called Web loyalty program. Judge Sack concluded in Schnabel v. Trilegiant Corp., 2012… Continue Reading
Who Owns an Employee’s Twitter and Other Online Accounts?
Posted in ContractsIn this era of multiple online communication channels, and in an environment of increased employee mobility, employers need to focus on the legal and practical ways of securing their ownership of online company accounts that are registered or otherwise created by employees or contractors. In the three cases discussed below, organizations learned that lesson the… Continue Reading
Novell Prevails in Long-Running Dispute over Ownership of UNIX Copyrights – And Open Source Software Moves On
Posted in Contracts, Copyright, Open SourceThe dispute between The SCO Group and Novell, Inc. over the ownership of copyrights in the code to certain versions of the UNIX operating system, which started eight years ago, appears to have been handed its retirement papers by the Tenth Circuit. Yesterday, on the case’s second visit to the circuit, the court upheld the… Continue Reading
Hurricane Irene Storms Through Force Majeure Provisions
Posted in ContractsUpdate: A little over a year after Hurricane Irene blew through, Hurricane Sandy dealt a devastating blow to the Eastern Seaboard. And our advice remains the same: review of force majeure clauses is in order, first to assess their implications for the current crisis, and for the long term, to prepare for the next time…. Continue Reading
Federal Lawsuit Alleges Infringement of Minors’ New York Right of Publicity by Facebook “Like” and “Friend Finder” Features
Posted in ContractsIn what may represent a new wave in an interesting challenge to the viral nature of social media marketing, a recently filed putative class action asserts a right of publicity claim against Facebook in connection with the service’s “Like” and “Friend Finder” features. J.N. v. Facebook, Inc., No. 11-cv-2128 (E.D.N.Y.) (complaint) is an action brought… Continue Reading
Arbitration Clause in Computer Purchase Contract Unenforceable Where Consumer’s Right to Reject Additional Contract Terms Was Not Clearly Explained
Posted in ContractsSince the Seventh Circuit opinion in ProCD v. Zeidenberg (7th Cir. 1996), judicial analysis of standard form contracts has proceeded along lines that have, in general, been more favorable to the efforts of sellers and licensors seeking to enforce the provisions of "agreement now, terms later" contracts. The ProCD v. Zeidenberg analysis of the relevant… Continue Reading
Web Site Invitation to Submit Art Work for Authentication Does Not a Contract Make, the New York Appellate Division Rules – A General Lesson for User-Generated Content
Posted in ContractsCan the submission of user-generated content pursuant to an invitation posted on a Web site give rise to implied contractual obligations on behalf of the Web site owner? Although the recent case of Thome v. The Alexander & Louisa Calder Foundation, 2009 NY Slip. Op., 2009 N.Y. App. Civ. LEXIS 8707 (N.Y. App. Div. 1st… Continue Reading
Arbitration Provision Unenforceable, Where Online Retailer’s Link to Browsewrap Terms and Conditions Was Not “Prominently Displayed”
Posted in ContractsWhen Cynthia Hines returned a vacuum cleaner to online retailer Overstock.com, she was reimbursed for the full amount of her purchase, but Overstock deducted a $30 restocking fee, citing a provision in its Web site Terms and Conditions. Hines filed a purported class action in federal court in the Eastern District of New York asserting… Continue Reading
Facebook Takes a Page from Ticketmaster’s Playbook: Block Unauthorized Web Site Access with Carefully Drafted Terms of Use
Posted in Contracts, CopyrightIn 2007, Ticketmaster brought a multi-count complaint against RMG Technologies, a software company that supplied ticket brokers with software that enabled them to automatically and rapidly access Ticketmaster’s Web site, to the detriment of ordinary users seeking tickets to popular events. The Ticketmaster v. RMG complaint was notable for stating a series of claims that… Continue Reading
No Third Party Beneficiary Status under Craigslist Terms of Use
Posted in ContractsA primary purpose of a Web site’s "Terms of Use" ("ToU") is to reserve to Web site owners the ability to regulate undesirable conduct. But should that ability be extended to third parties? Can users of a site assert that they are third-party beneficiaries of that Web site’s ToU, and invoke the provisions of the… Continue Reading
Are Clickwrap Agreements with Minors Enforceable? The Fourth Circuit Won’t Say, But the District Court Said Yes
Posted in ContractsIn A.V. v. iParadigms, LLC, 2009 U.S. App. LEXIS 7892 (4th Cir. Apr. 16, 2009), the Fourth Circuit concluded that the archiving of high school student term papers by a plagiarism detection service is protected by the fair use doctrine. Having so ruled, the appeals court did not address the district court’s analysis of the… Continue Reading
Clickwrapped and Browsewrapped – Court Rejects Attorney Plaintiff’s Challenge to Travel Site Terms and Conditions
Posted in ContractsCase law has developed over the years with respect to enforceability of Web site terms and conditions, and the general parameters are now pretty well understood. Courts will, in general, enforce online terms and conditions against consumer users, provided they are given adequate notice and an opportunity for review. There are numerous exceptions to the… Continue Reading
Sixth Circuit Enforces Disclaimers in Consumer Online Clickwrap Terms of Service
Posted in Contracts, Online CommerceIn Doe v. SexSearch.com, Inc., the Sixth Circuit considered the appeal of a user of the SexSearch online dating service from dismissal of his breach of contract, fraud and other state law claims (based on Ohio law) against the service for its failure to screen out underage minors. Doe was arrested and charged with unlawful… Continue Reading