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The content in this post was found at https://arstechnica.com/tech-policy/2020/03/court-violating-a-sites-terms-of-service-isnt-criminal-hacking/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Technology & Marketing Law Blog
Eric Goldman
March 27, 2020

Redbox allegedly sent unwanted texts to Wilson. Wilson sued for TCPA violations. Redbox invoked the arbitration clause in its TOU. The court says the TOU did not properly form and denies the arbitration request. Ouch.

Wilson joined Redbox in 2007 using its web interface. From March 2010 to December 2018, she rented 125 movies using both the web interface and in-store kiosk. In November 2016, Redbox added a mandatory arbitration provision to its TOU and emailed 120M customers to notify them of the addition. These facts gave Redbox 3 different places where it might have formed the contract: the web screen, the kiosk interface, and the amendment email. All of them fail.

The “Wrap” Nonsense

Once again, the “wrap” taxonomy provides no help. The court says “[m]any online contracts do not fit neatly into the clickwrap or browsewrap categories but instead share characteristics with both.” Naturally, that’s the case here:

the My Bag and Sign in screens are both hybrid agreements. Neither screen displays the full Terms of Use, but both make them accessible via a hyperlink. Moreover, both screens tie assent to the Terms of Use to some additional action—hitting “Pay Now” for customers using a kiosk or signing into their Redbox account for customers renting online.

At this point, why even bother with the clickwrap/browsewrap distinction if every contract ends up being a tertium quid? FFS.

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The content in this post was found at https://blog.ericgoldman.org/archives/2020/03/redboxs-terms-of-use-fail-ouch-wilson-v-redbox.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Technology & Marketing Law Blog
Eric Goldman
Jan. 7, 2020

It’s increasingly hard to find good news in Internet law, so I organized this year’s Internet Law roundup by categories of doom. Trigger warning: you should grab some tissues before proceeding.

Doomed (in a Bad Way)

Doomed: User-Generated Content.

Doomed: Print-on-Demand Services.

Doomed: Online Marketplaces.

Doomed: Internet Access Providers.

Doomed: Cybersecurity.

Doomed: Sex Workers and Sex Trafficking Victims.

Doomed: the CCPA. 

Doomed (in a not-terrible sense)

Doomed: “Must-Carry” Obligations for Publishers Who Aren’t State Actors. 

Doomed: the Roommates.com Section 230 Exception.

Doomed: Cases Against Social Media Services for Terrorist Content.

Doomed: the Liebowitz Copyright Litigation Machine.

Doomed: Politicians Banning Constituents on Social Media. T

Other

Online Political Content and Ads.

hiQ v. LinkedIn.

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The content in this post was found at https://blog.ericgoldman.org/archives/2020/01/top-internet-law-developments-of-2019.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Dawn Mertineit & Dallin Wilson
LexBlog
September 27, 2019

In an a recently published opinion, the Ninth Circuit answered the question whether “LinkedIn, the professional networking website, [may] prevent a competitor, hiQ, from collecting and using information that LinkedIn users have shared on their public profiles, available for viewing by anyone with a web browser?” In affirming the trial court’s injunction enjoining LinkedIn from blocking hiQ’s access to its users’ public profiles, the Ninth Circuit held, among other things, that hiQ’s scraping did not amount to accessing LinkedIn’s users’ data “without authorization,” in violation of the Computer Fraud and Abuse Act (“CFAA”), because the data hiQ was accessing was publicly available and therefore did not fall within the scope of the CFAA.

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The content in this post was found at https://www.lexblog.com/2019/09/27/9th-circuit-takes-narrow-view-of-the-computer-fraud-and-abuse-act-in-linkedin-data-scraping-case/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Tech Dirt

Mike Masnick

Fri, Aug 31st 2018

[ed’s note: we need no more evidence than this case to substantiate our claim that judges in the US court system have lost their collective memories from the contracts classes they took in law school. Apparently, not a one of them is willing to use common sense and legal judgment to mark terms of service and other wrap contracts as the crap that they usually are. Here, we have yet another stunning example of a judge sticking with bad precedent rather than pointing out the obvious and thereby bringing some wisdom into the void].

Tech Dirt

Mike Masnick

Fri, Aug 31st 2018

Earlier this year we wrote about Disney’s silly lawsuit against Redbox. If you don’t recall, Redbox, whose main business was renting DVDs out of kiosks started also offering digital download codes that could be purchased at their kiosks. What Redbox did, was it would buy Disney “combo packs” (that came with both a DVD and a download code) and would offer up just the slip of paper with the code out of its kiosks. This seems like perfectly reasonable first sale rights. A legitimate code was purchased, and then resold.

When we wrote about the case back in February, it involved the court smacking down Disney, and even saying that the company was engaged in “copyright misuse” in overclaiming what copyright allowed the company to do. . . .

So my prediction following that was: “this almost certainly means that Disney is quickly reprinting the packaging on all its Combo Pack DVDs to make this language more legalistic to match the Lexmark standard.”

And… bingo. That’s exactly what happened. In a new ruling, the court has now granted a preliminary injunction against Redbox all because of the new “contract” language Disney has put on its DVDs (though amusingly, in a footnote, the court notes “Disney does not concede that the changes were necessary.”)

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The content in this post was found at https://www.techdirt.com/articles/20180831/00545440550/disney-fixes-sketchy-dvd-rental-license-wins-injunction-against-redbox-over-digital-downloads.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Lex Blog

AUGUST 15, 2018

In our continued post-TC Heartland coverage, Judge Gilstrap in the Eastern District of Texas recently held that venue was proper because Google exercises exclusive control over physical servers implicated by the litigation, as well as the physical space within which the server is located and maintained. The court emphasized that the place where the server is located occupies a physical space, which is more than merely a virtual space or electronic communications from one person…

Chicago IP Litigation

R. David Donoghue

May 25, 2018TopstepTrader, LLC v. OneUp Trader, LLC, No. 17 C 4412, Slip Op. (N.D. Ill. Apr. 18, 2018) (Leinenweber, J.).

Judge Leinenweber granted in part defendant OneUp Trader’s Fed. R. Civ. P. 12(b)(6) motion to dismiss and defendant Alsabah’s Fed. R. Civ. P. 12(b)(2) & (6) motion to dismiss for lack of personal jurisdiction and failure to state a claim in this copyright dispute involving electronic trading systems.

Personal Jurisdiction

Alsabah had to enter an agreement to use TopstepTrader’s software in which he allegedly consented to jurisdiction in Illinois. The Court held that the contract was on a spectrum between a clickwrap and a browsewrap agreement, in a type of agreement referred to as sign-in-wrap. Alsabah did not take an affirmative action to explicitly agree to the site terms, but there was affirmative action in that Asabah had to sign up for an account. During the sign up process, Alsabah would have been informed that by creating an account, he accepted the terms of service, along with a hyperlink to those terms. In fact, Alsabah clicked a “sign up” button next to a hyperlink for the terms. Without doing so, he could not have activated an account and gotten access to TopstepTrader’s website. But the “sign up” button did not clearly state that by clicking on it Alsabah was accepting the terms. So, while it was a close call, the terms and their forum selection clause were not enforceable against Alsabah.

Regarding specific jurisdiction, TopstepTrader’s location in Illinois and harm in Illinois was not sufficient to create personal jurisdiction. But Alsabah specifically sought out TopstepTrader’s website, created an account and then received multiple communications which identified TopstepTrader as an Illinois-based company. While walking into a brick and mortar store in Illinois would have been better evidence of specific jurisdiction, signing up with an Illinois business under the particular circumstances that Alsabah did was sufficient to create specific jurisdiction.

Failure to State a Claim

While OneUp Trader is correct that short, common phrases may not be copyright-protectable, OneUp Trader failed to address Topstep Trader’s argument that it is the combination of elements such as text, graphic size screen layouts, colors, charts, unique terms, etc. that is protectable. And even if the alleged copying identified in the complaint was only a small portion of the total content, that could be sufficient. Topstep Trader did not need to detail each copied element. It was enough to provide examples of the copying at the complaint stage. And a review of the exhibits showed sufficient alleged copying.

The Court dismissed Topstep Trader’s breach of contract claim, but gave Topstep Trader leave to replead with sufficient facts to show that a contract was formed that would support Topstep Trader’s breach claim.

Finally, Alsabah argued that the claims against him should be dismissed because the complaint only specifically mentioned him in limited instances. Topstep Trader, however, defined a term that combined OneUp Trader and Alsabah and referred to it collectively throughout the complaint.

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The content in this post was found at https://www.chicagoiplitigation.com/2018/05/sign-in-wrap-did-not-create-personal-jurisdiction/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Technology & Marketing Law Blog
Venkat Balasubramani
June 29, 2018
The plaintiffs allege Uber made overcharges or improper surcharges. Uber moved to compel arbitration. The district court granted the motion, despite the lack of a leakproof contract formation mechanism. (Blog post mentioning the district court ruling here: “Courts Approve Terms of Service-Based Arbitration Clauses for Uber and Groupon”.) On appeal, the First Circuit reverses.

As with most other courts to have addressed the issue, a Massachusetts appellate court held that traditional contract principles need not be modified when analyzing online agreements. The question is whether online terms have been reasonably communicated and accepted by the consumer. In a footnote, the court says that the existence of an arbitration clause does not change the analysis.

Uber didn’t argue that the users in question clicked on or read the terms. Rather, the argument is that the terms were reasonably conspicuous such that consumers should be charged with knowledge. The key question is whether the terms are “conspicuous,” and this is one of reasonableness.

Case citation: Cullinane v. Uber Techs., 2018 WL 3099388 (1st Cir. June 25, 2018).

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/06/ubers-contract-formation-process-fails-again-cullinane-v-uber.htm  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

IP Watchdog

Roman Brtka
April 2, 2018

eSports is an exciting new area — not only in the sporting industry but in legal terms. There are various key players such as eGamers, game publishers, and organizers of eSports events, who are facing the challenge of sufficiently protecting their rights. Organizers need to ensure that they obtain all necessary usage rights from the game publishers and the participating eGamers, and these parties need to be aware of their possible ancillary copyrights and should take appropriate precautionary measures to protect them.

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This is a lawsuit brought by four professors and a media organization (First Look, publisher of the Intercept). Plaintiffs study real estate, finance, and employment transactions and seek to highlight the discriminatory effects of algorithms. To do so, they create fake profiles, including profiles for minorities, and test the profiles. The court describes this as akin to testing for discrimination in the housing or loan markets. For example, plaintiffs intend to use bots to create fake profiles which then will surf real estate websites, simulating the behavior of minority groups. The plaintiffs intend to then scrape the websites to record the displayed properties. Similarly, several of the other plaintiffs intend to use bots to crawl job-seeker profiles, then create fake employer profiles so they can search for candidates and see how they are ranked. They also intend to create fake job-seeker profiles and have these fictitious job-seekers apply for fictitious jobs, to see how algorithms rank candidates. Both the professors and First Look intend to publicize their findings.

They all contend their actions leave them susceptible to the risk of prosecution under the CFAA. They brought an action for declaratory relief alleging First Amendment and Due Process Claims.

. . .

Standing: In the pre-enforcement context, a plaintiff has to establish that she has an intention to engage in conduct (1) that is affected with a constitutional interest; (2) that is proscribed by statute and (3) which gives risk a credible risk of prosecution.

The court says plaintiffs’ activity has a constitutional dimension, among other things, because:

scraping plausibly falls within the ambit of the First Amendment.

The court says cases broadly recognize the right to record “matters of public interest.” Scraping, at least as it encompasses information located in a “public forum,” falls within this right. The court says plaintiffs also have an interest in making “harmless misrepresentations” to websites.

Case citation: Sandvig v. Sessions, 2018 WL 1568881 (D.D.C. March 30, 2018)

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/04/researchers-challenge-to-cfaa-moves-forward-sandvig-v-sessions.htm

Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.