On May 20, 2019, in Mission Product Holdings, Inc. v. Tempnology, LLC, 587 U.S. ___ (2019), the Supreme Court resolved an area of ongoing concern for parties to trademark licenses. The court addressed a circuit split on whether a trademark licensee may continue to use a trademark for the term of the license, after the … Continue Reading
This month, an Illinois district court considered another in the series of web scraping disputes that have been working their way through our courts. In this dispute, CouponCabin, Inc. v. PriceTrace, LLC, No. 18-7525 (N.D. Ill. Apr. 11, 2019), CouponCabin alleged that a competitor, PriceTrace, scraped coupon codes from CouponCabin’s website without authorization and displayed … Continue Reading
In a recent blog post, we wrote about how the Second Circuit found the arbitration clause in a web service’s terms and conditions unenforceable because the user did not have reasonable notice of the terms that were communicated via a hyperlink in a post-sale email. In contrast, a New York district court recently upheld an … Continue Reading
In Starke v. SquareTrade, Inc., No. 17-2474, 2019 WL 149628 (2d Cir. Jan. 10, 2019), the Second Circuit affirmed a ruling that denied a web service’s motion to compel arbitration, finding that the user did not have reasonable notice of the arbitration provision contained in the terms and conditions that were communicated via a hyperlink … Continue Reading
Yesterday, Los Angeles City Attorney Mike Feuer filed an unfair competition lawsuit on behalf of the People of the State of California against the operator of the popular Weather Channel app (“TWC app”) for allegedly failing to conspicuously disclose to users that the TWC app collects and shares users’ mobile geolocation data. (People v. TWC … Continue Reading
This post discusses some of the contractual requirements imposed by Apple and Google regarding the collection and sharing of locational information. What consents, if any, do Apple and Google require that app publishers obtain before collecting and using locational information? This is a question that is being asked with increasing frequency. In fact, a regular … Continue Reading
A recent dispute between an advertiser AXTS Inc. (“AXTS”) and a video production company GY6vids (“GY6”) produced an interesting issue involving the federal Computer Fraud and Abuse Act (CFAA) – that is, whether an entity that allegedly overloaded another company’s YouTube channel content with a flood of “dislikes” following a contractual dispute is liable under … Continue Reading
Licensors of software typically utilize software license agreements providing for their ownership of the licensed software and related IP, as well as restrictions barring licensees from reverse engineering the code at issue. The scope of protection, of course, depends on the final language of the licensing agreement and disputes can arise when licensees decide to … Continue Reading
A D.C. district court ruled that an eBay user did not assent to a later-added arbitration clause to the user agreement by virtue of a provision that stated eBay could amend the agreement at any time, as the user may not have received sufficient notice of the amendment. (Daniel v. eBay, Inc., No. 15-1294 (D.D.C. … Continue Reading
UPDATE: On November 1, 2018, the court dismissed the plaintiff’s amended complaint (which apparently dropped the CFAA claim and asserted Lanham Act and DMCA claims). Specifically, the plaintiff asserted, among other things, that defendant removed the copyright management information (CMI) from plaintiff’s listings and website source code. The court ruled that plaintiff failed to show … Continue Reading
Courts are increasingly taking a magnifying glass to electronic contracting processes, particularly how the presentation of the terms of service and call to action are displayed. As such, companies might take a second look at their own user registration and e-commerce purchase processes to ensure they offer reasonably conspicuous notice of the existence of contract … Continue Reading
In a brief, unpublished opinion, the Sixth Circuit affirmed the dismissal of right of publicity and privacy claims against a host of self-publishing platforms and service providers for distributing an erotic (and purported “less than tasteful”) book whose cover contained an unauthorized copy of the plaintiffs’ engagement photo because the plaintiffs failed to plead more … Continue Reading
In an unpublished opinion, the Ninth Circuit affirmed a lower court’s ruling that had sent a putative class action against Amazon over its pricing practices to arbitration, as per Amazon’s terms of service. (Wiseley v. Amazon.com, Inc., No. 15-56799 (9th Cir. Sept. 19, 2017) (unpublished)). In finding that Amazon’s “Conditions of Use” were not unconscionable … Continue Reading
UPDATE: Last month, the First Circuit affirmed the dismissal of the action, holding that there was no language in Homeaway’s “Basic Rental Guarantee” that makes any representation or warranty that Homeaway pre-screened listings before they were posted, as the document, at that time, simply established a process for obtaining a refund of up to $1000 … Continue Reading
In recent years, courts have issued varying rulings as to whether online or mobile users adequately consented to user agreements or terms of service when completing an online purchase or registering for a service. In each case, judges have examined the facts closely, particularly the user interface that presents the terms to the user before … Continue Reading
For years, craigslist has aggressively used technological and legal methods to prevent unauthorized parties from violating its terms of use by scraping, linking to or accessing user postings for their own commercial purposes. In its latest judicial victory, on April 13, 2017, craigslist obtained a $60.5 million judgment against Radpad on various claims relating to … Continue Reading
This past summer, we wrote about two instances in which courts refused to enforce website terms presented in browsewrap agreements. As we noted, clickthrough agreements are generally more likely to be found to be enforced. However, even the enforceability of clickthrough agreements is going to depend, in part, on how the user experience leading to … Continue Reading
In a dispute that touches on the intersection of copyright, contract law and cloud technology, the Second Circuit affirmed the dismissal of copyright claims against Barnes & Noble (“B&N”) related to ebook samples stored on a user’s B&N-provided cloud-based locker. Notably, the Second Circuit dismissed the case on contractual grounds, declining the opportunity to opine … Continue Reading
Your client is sued for failure to pay on a contract and says it shouldn’t have to pay because the prices were fixed by a cartel or that it was strong-armed into paying for a “bundle” of services or distribution channels even though it only wanted a subset of the bundle. Is that a defense? … Continue Reading
Expanded Basic. Choice. Choice Plus. Cable and satellite TV customers pay monthly fees for bundled channel packages of different sizes. The packages are becoming “skinnier,” allowing you to customize your service from a set of modules (i.e., the Family package, the Sports package, various language packages, etc.). But each module is still a pre-set bundle … Continue Reading
If your company sells a smart device to a consumer, can it later turn the device into a paid advertising platform? Can it do so without advanced disclosure? A recent court ruling suggests the answer is “yes,” at least in New York.… Continue Reading
2015 and 2016 saw a wave of transactions among cable, satellite, and other linear programming distributors: AT&T & DirecTV, Altice and Suddenlink, etc. That transactional wave is beginning to spawn a litigation wave, principally over interpretation and application of the pre-existing licenses and contracts between networks and distributors. A recent ruling in one California case … Continue Reading
In Nghiem v Dick’s Sporting Goods, Inc., No. 16-00097 (C.D. Cal. July 5, 2016), the Central District of California held browsewrap terms to be unenforceable because the hyperlink to the terms was “sandwiched” between two links near the bottom of the third column of links in a website footer. Website developers – and their lawyers … Continue Reading
For years, craigslist has aggressively used technological and legal methods to prevent unauthorized parties from scraping, linking to or accessing user postings for their own commercial purposes. In a prior post, we briefly discussed craigslist’s action against a certain aggregator that was scraping content from the craigslist site (despite having received a cease and desist … Continue Reading
