On September 30, 2021, a Texas district court granted Southwest Airline Co.’s (“Southwest”) request for a preliminary injunction against online travel site Kiwi.com, Inc. (“Kiwi”), barring Kiwi from, among other things, scraping fare data from Southwest’s website and committing other acts that violate Southwest’s terms. (Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. … Continue Reading
On January 14, 2021, Southwest Airlines Co. (“Southwest”) filed a complaint in a Texas district court against an online travel site, Kiwi.com, Inc. (“Kiwi”), alleging, among other things, that Kiwi’s scraping of fare information from Southwest’s website constituted a breach of contract and a violation of the Computer Fraud and Abuse Act (CFAA). (Southwest Airlines … Continue Reading
As reported last week, it appears that a state-sponsored security hack has resulted in a major security compromise in widely-used software offered by a company called SolarWinds. The compromised software, known as Orion, is enterprise network management software that helps organizations manage their networks, servers and networked devices. The software is widely-used by both public … Continue Reading
New York has enacted a new law, effective February 9, 2021, regulating automatic renewal and some “free trial” type agreements. While some organizations may have already taken steps to be in compliance with industry requirements, the federal Restore Online Shoppers’ Confidence Act (ROSCA), and similar auto-renewal laws in place in California and other states, all … Continue Reading
In continuing its efforts to enforce its terms and policies against developers that engage in unauthorized scraping of user data, this week Facebook brought suit against two marketing analytics firms, BrandTotal Ltd (“BrandTotal”) and Unimania, Inc. (“Unimania”) (collectively, the “Defendants”) (Facebook, Inc. v. BrandTotal Ltd., No. 20Civ04246 (Cal. Super. Ct., San Mateo Cty Filed Oct. … Continue Reading
Many online services feature comprehensive terms of use intended to protect their business from various types of risks. While it is often the case that a great deal of thought goes into the creation of those terms, frequently less attention is paid to how those terms are actually presented to users of the service. As … Continue Reading
This past week, the operator of the popular Weather Channel (“TWC”) mobile phone app entered into a Stipulation of Settlement with the Los Angeles City Attorney, Mike Feuer (“City Attorney”), closing the books on one of the first litigations to focus on the collection of locational data through mobile phones. (People v. TWC Product and … Continue Reading
This past March, many organizations were forced to suddenly pivot to a “work from home” environment (“WFH”) as COVID-19 spread across our country. However, many companies did not have the necessary technical infrastructure in place to support their full workforce on a WFH basis. Often, remote access systems were configured assuming only a portion of … Continue Reading
The COVID-19 pandemic has fundamentally altered the way we live and conduct business. Most non-essential businesses have closed their offices and established entirely remote workforces, and many individuals may be in quarantine, which means that “wet” signatures on paper can be highly inconvenient. This reality has focused more attention on electronic formats. In this blog … Continue Reading
We continue to wait to see if the Supreme Court will accept LinkedIn’s petition to overturn the Ninth Circuit’s blockbuster ruling in the hiQ Labs case. In that case, the appeals court held that an entity engaging in scraping of “public” data had shown a likelihood of success on its claim that such access does … Continue Reading
In an innovative initiative in the battle against the Coronavirus, the newly-formed Open COVID Coalition (the “Coalition”) launched the Open COVID Pledge (the “Pledge”), a framework for organizations to contribute intellectual property to the fight against COVID-19. Pursuant to the Pledge, rightsholders can openly license intellectual property to facilitate the development of tools and technologies … Continue Reading
In recent years, courts have issued a host of rulings as to whether online or mobile users received adequate notice of and consented to user agreements or website terms when completing an online purchase or registering for a service. Some online agreements have been enforced, while others have not. In each case, judges have examined … Continue Reading
In early February 2020, before most of us were truly aware of the implications of COVID-19, a well-respected IT consulting group predicted a $4.3 trillion global spend on information technology in 2020. Drivers of the projected activity included cybersecurity, outdated infrastructure, mobile accessibility needs, cloud and SaaS transitions, and on-premises technology requirements. In late 2019, … Continue Reading
Teami, LLC (“Teami”), a marketer of teas and skincare products, agreed to settle FTC charges alleging that its retained social media influencers did not sufficiently disclose that they were being paid to promote Teami’s products. The FTC’s Complaint also included allegations that Teami made unsupported weight-loss and health claims about its products, an issue that … Continue Reading
As part of the response to the outbreak of COVID-19, many organizations are working on contingency and business continuity plans that include an all-employee “work-from-home” scenario. If it becomes necessary to implement such a plan, all employees of the organization will access the organization’s networks and systems remotely. Unfortunately, many organizations that are testing these … Continue Reading
In continuing its push to enforce its terms and policies against developers that engage in unauthorized collection or scraping of user data, Facebook brought suit last month against mobile marketing and data analytics firm OneAudience LLC. (Facebook, Inc. v. OneAudience LLC, No. 20-01461 (N.D. Cal. Complaint filed Feb. 27, 2020)). Facebook alleges that OneAudience harvested … Continue Reading
Beyond the human toll of the current global health crisis, the coronavirus outbreak is having serious economic repercussions to the global economy and the supply chains on which it depends. Dun & Bradstreet reported, “at least 51,000 (163 Fortune 1000) companies around the world have one or more direct or Tier 1 suppliers in the … Continue Reading
Epic Games, Inc. (“Epic”) is the publisher of the popular online multiplayer videogame Fortnite, released in 2017. In recent years, Fortnight has gained worldwide popularity with gamers and esports followers (culminating in July 2019 when a sixteen-year-old player won the $3 million prize for winning the Fortnite World Cup). Players, in one version of the … Continue Reading
Two recent web scraping disputes highlight some important issues regarding whether a website owner may successfully allege a breach of contract action against a commercial party that has scraped website content contrary to “clickwrap” and “browsewrap” website terms of use. In Southwest Airlines Co. v. Roundpipe, LLC, No. 18-0033 (N.D. Tex. Mar. 22, 2019), a … Continue Reading
Last month, a California district court granted a web-based service’s motion to compel arbitration of a putative class action brought by a user whose personal information was allegedly accessed in a massive 2016 data breach that involved 339 million user accounts. (Gutierrez v. FriendFinder Networks Inc., No. 18-05918 (N.D. Cal. May 3, 2019)). While the … Continue Reading
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
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