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Category Archives: Contracts

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Ninth Circuit Rejects Claim That Amazon’s Terms and Conditions Are an Unconscionable Contract

In an unpublished opinion, the Ninth Circuit affirmed a lower court’s ruling that had sent a putative class action against Amazon over its pricing practices to arbitration, as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 (Wiseley v. Amazon.com, Inc., No. 15-56799 (9th Cir. Sept. 19, 2017) (unpublished)).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

Online Vacation Rental Marketplace Sends Claims Packing with Carefully Drafted Terms

In a resounding victory for well-drafted terms and conditions and robust immunity under Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (“CDA Section 230”), a Massachusetts district court granted summary judgment in favor of HomeAway, the online vacation rental marketplace, on two users’ claims stemming from a dispute over a property listing … Continue Reading

Second Circuit Upholds Uber’s Mobile Contracting Process, Establishing Template for Mobile Online Contracting

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

Craigslist Garners $60 Million Judgment against Radpad in Scraping Dispute

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

Website Design Implicated in Two Rulings on Enforceability of Online Terms – Highlights the Importance of Legal Review of Design Decisions

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

Claims against Cloud Storage Service Hinge on Grant of Rights Clause

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

Satellite TV Provider Not Required to Offer Credit When Channels Go Dark

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

Cable Network May Proceed with Claims Against Distributor on Theories Beyond Written Contract

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

Browsewrap Agreement Held Unenforceable – Website Designers Take Note!

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

Craigslist Files Another Suit against Data Scraper

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

California Court Refuses to Dismiss Biometric Privacy Suit against Facebook

The District Court for the Northern District of California recently issued what could be a very significant decision on a number of important digital law issues.  These include: the enforceability of “clickwrap” as compared to “web wrap” website terms of use, the enforceability of a choice-of-law provision in such terms of use, and a preliminary … Continue Reading

Self-Publishing Platforms Deemed Distributors, Not Publishers in Privacy Suit over Unauthorized Book Cover

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content.  A recent case touches on some of the important legal issues associated with such change.  Among other things, the case illustrates the importance of … Continue Reading

Clickwrap Agreement Available Only Through Hyperlink Enforceable Under New York Law

Last week, the Southern District of New York followed a long line of precedent under New York law and upheld the enforceability of a website clickwrap agreement, granting a website operator’s motion to compel arbitration pursuant to a clause contained in the agreement. (Whitt v. Prosper Funding LLC, 2015 WL 4254062 (S.D.N.Y. July 14, 2015)). … Continue Reading

Meeting of the Minds at the Inbox: Some Pitfalls of Contracting via Email

We have had a number of clients run into issues relating to whether or not an email exchange constituted a binding contract.  This issue comes up regularly when informality creeps into negotiations conducted electronically, bringing up the age-old problem that has likely been argued before judges for centuries: one party thinks “we have a deal,” … Continue Reading

QVC Sues Shopping App for Web Scraping That Allegedly Triggered Site Outage

Operators of public-facing websites are typically concerned about the unauthorized, technology-based extraction of large volumes of information from their sites, often by competitors or others in related businesses.  The practice, usually referred to as screen scraping, web harvesting, crawling or spidering, has been the subject of many questions and a fair amount of litigation over … Continue Reading

Browsewrap Agreement Held Unenforceable Against Consumer Due to Insufficient Notice

Many commercial websites rely on “browsewrap” agreements to bind visitors to commercial terms. A recent decision by the Ninth Circuit suggests that a review of how those terms are presented may be in order to ensure enforceability. A browsewrap agreement is a set of terms which is accessible via a hyperlink located on the pages … Continue Reading

In Clickwrap Data Pass Contract Dispute, Second Circuit Sacks E-mail Notice of Post-Transaction Terms

In 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

Novell Prevails in Long-Running Dispute over Ownership of UNIX Copyrights – And Open Source Software Moves On

The 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

Federal Lawsuit Alleges Infringement of Minors’ New York Right of Publicity by Facebook “Like” and “Friend Finder” Features

In 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
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