Supreme Court Denies Appeals of Notable Data Scraping, Computer Fraud Decisions from Ninth Circuit

27 12 2017

This past week, the Supreme Court denied the petitions for certiorari in two noteworthy Ninth Circuit decisions that had interpreted the scope of liability under the federal Computer Fraud and Abuse Act (CFAA) in the context of wrongful access of company networks by employees and in instances involving unwanted data scraping from publicly available websites. (See Power Ventures, Inc. v. Facebook, Inc., 844 F.3d 1058 (9th Cir. 2016), cert. denied (Oct. 10, 2017); Nosal v. U.S., 828 F.3d 865 (9th Cir. 2016) (Nosal II), cert. denied (Oct. 10, 2017)).   Power Ventures involved a social media aggregation service that scraped Facebook user data with the permission of the user. There, the appeals court had held that while a violation of the terms of use of a website—without more—cannot be the basis for liability under the CFAA, a commercial entity that accesses a public website after permission has been explicitly revoked can be civilly liable under the CFAA.  In Nosal II, the Ninth Circuit had ruled that a former employee, whose access has been revoked, and who uses a current employee’s login credentials to gain network access to his former company’s network, violated the CFAA.

With the Court declining to review, this important pair of rulings about the breadth of CFAA liability will stand.

more


The content in this post was found at https://newmedialaw.proskauer.com/2017/10/13/supreme-court-denies-appeals-of-notable-data-scraping-computer-fraud-decisions-from-ninth-circuit/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



The rise of eSports creates a complicated relationship with IP

19 12 2017

Recently, eSports have exploded in popularity to the point that college conferences, such as the Big 10, are now fielding eSports teams. Patented technologies and partnerships in the eSports field have been developed to take advantage of this boom as well. However, there are problems with enforcing IP rights, both because the patents could be potentially held as ineligible subject matter and the ownership rights for the IP are difficult to determine.

more

The content in this post was found at http://www.ipwatchdog.com/2017/03/25/rise-esports-complicated-ip/id=79418/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



LinkedIn Files Opening Brief with Ninth Circuit in Closely-Watched Data Scraping Dispute with hiQ

12 10 2017

In a new development in an important scraping dispute, LinkedIn appealed the lower court’s decision to grant a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block the defendant’s data scraping activities.  LinkedIn’s brief was filed on October 3, 2017.  In it, LinkedIn asserts that the relevant issue is whether the lower court “erred as matter of law by holding—contrary to the CFAA’s unambiguous text and Circuit precedent—that LinkedIn could not invoke the CFAA after LinkedIn revoked hiQ’s access to its servers by sending a particularized cease-and-desist letter and imposing technical measures to block hiQ’s data-scraping bots.”

We will be watching the developments in this case closely.

more


The content in this post was found at http://newmedialaw.proskauer.com/2017/10/05/linkedin-files-opening-brief-with-ninth-circuit-in-closely-watched-data-scraping-dispute-with-hiq/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



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

12 10 2017

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 and presented in a reasonable manner, this holding differs from a Second Circuit decision from last year that declined to compel arbitration because reasonable minds could disagree regarding the sufficiency of notice provided to Amazon.com customers when placing an order through the website. (On remand, a New York magistrate judge ruled that the court should grant Amazon’s motion to compel arbitration on other grounds based upon the plaintiff’s constructive knowledge of the terms.)

 

more

The content in this post was found at http://newmedialaw.proskauer.com/2017/10/05/ninth-circuit-rejects-claim-that-amazons-terms-and-conditions-are-an-unconscionable-contract/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



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

7 02 2017

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 the “agreement” is designed.  Two recent decisions illustrate the importance of web design and the presentation of the “call to action” language in determining the enforceability of a site’s clickthrough terms.

In a decision from early November, a D.C. federal court ruled that an Airbnb user who signed up on a mobile device had assented to the service’s Terms and was bound to arbitrate his claims. (Selden v. Airbnb, Inc., 2016 WL 6476934 (D.D.C. Nov. 1, 2016)).   Conversely, in a notable decision from late August, the Second Circuit refused to rule as a matter of law that the plaintiff was bound by the arbitration clause contained in Amazon’s terms and conditions because the plaintiff did not necessarily assent to and was on constructive notice of the terms when he completed the purchase in question. (Nicosia v. Amazon.com, Inc., 2016 WL 4473225 (2d Cir. Aug. 25, 2016)).

more

The content in this post was found at http://newmedialaw.proskauer.com/2016/11/21/website-design-implicated-in-two-rulings-on-enforceability-of-online-terms-highlights-the-importance-of-legal-review-of-design-decisions/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Browsewrap Agreement Held Unenforceable – Website Designers Take Note!

30 01 2017

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 – should take note of this case, part of an emerging trend of judicial scrutiny over how browsewrap terms are presented. Courts have, in many instances, refused to enforce browsewraps due to a finding of a lack of user notice and assent. In this case, the most recent example of a court’s specific analysis of website design, a court suggests that what has become a fairly standard approach to browsewrap presentment fails to achieve the intended purpose.

more


The content in this post was found at http://newmedialaw.proskauer.com/2016/07/28/browsewrap-agreement-held-unenforceable-website-designers-take-note/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Want An Enforceable Online Contract? Don’t Use A Footer Link Called “Reference”–Zajac v. Walker

30 01 2017

This lawsuit involves the purchase of items I don’t understand. Let’s just call them “thingies.” The buyer Zajac needed thingies with an appropriate rating. It bought the thingies from a distributor, Walker, then realized the thingies didn’t have the appropriate rating. Recriminations and a lawsuit ensued.

The thingies’ manufacturer, Turck, sought a venue change based on the “terms of use” section of its website. The buyer had reviewed the manufacturer’s website to confirm the thingies’ rating. The manufacturer took the position that the buyer’s website review incorporated the terms of use into the transaction. But what did the manufacturer do to draw the buyer’s attention to these terms of use? Apparently, bupkis:

the terms of use page could be accessed by clicking on a small link at the bottom of Turck’s website entitled “Reference.” Users were not prompted to read or affirmatively agree to the terms of use.

The court is totally unimpressed with the manufacturer’s arguments (yes, the court calls the TOU a browsewrap but I’ll overlook that transgression):

Merely including terms of use on a website is not sufficient to incorporate those terms into legal relations between the website operator and the user, even where the user purchases an item or downloads software from the operator’s website….

more

Case citation: Zajac, LLC v. Walker Industrial, 2016 WL 3962830 (D. Maine July 21, 2016)

The content in this post was found at https://arstechnica.com/tech-policy/2016/07/photographer-sues-getty-images-for-selling-photos-she-donated-to-public/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Court Enforces Arbitration Clause in Amazon’s Terms of Service–Fagerstrom v. Amazon

2 01 2017

This lawsuit alleges that Amazon overstated the extent of discounts it offered customers (in stating the extent of the discount customer achieved when shopping at Amazon versus competing retailers). Amazon moved to compel arbitration, and the court grants the motion. The efficacy of arbitration clauses in online terms of service agreements is an evergreen topic of interest, so although it was decided in late October I thought the case was worth noting.

The court agrees with Amazon that Washington law applies. Plaintiffs argued for application of California law, but were unable to point to a fundamental conflict between the laws of the two states.

The terms are not illusory. The agreement reserved the right for Amazon to make changes at any time and without prior notice. Plaintiffs argued that this rendered the agreement illusory. The court disagrees, and says that Amazon has agreed to arbitrate disputes as to products purchased. This obligation remains unchanged and cannot be altered by a later revised term. Additionally, Amazon is bound by the duty of good faith. So even if it can alter the agreement freely, this right is subject to limitations.

The terms are not undermined by procedural unconscionability. Plaintiffs raised three main arguments in support of procedural unconscionability:

  • the text of order affirming agreement to the terms were not sufficiently prominent
  • the arbitration clause was buried because it was included in a longer document that was only linked
  • the arbitration clause incorporated a set of AAA rules but were vague about which ones were incorporated

These arguments get no traction.

The terms were not substantively unconscionable: Plaintiffs’ substantive unconscionability arguments similarly failed. The court previously addressed plaintiffs’ argument that the unilateral right to amend rendered the agreement illusory. In addition to this, plaintiffs raised two other arguments.

First, plaintiffs argued that the carveout from the arbitration clause for intellectual property claims was one-sided, and in effect allowed Amazon to litigate the claims that were most important to it, while forcing consumers to arbitrate claims that were most important to them. The court finds this unpersuasive, noting that customers include rightsowners who may litigate intellectual property disputes against Amazon. Second, even if this represented some imbalance, this wasn’t a provision that shocked the conscience. It was within the realm of the typical give-and-take in a contract.

Second, plaintiffs focused on a provision voluntarily limiting Amazon’s right to seek attorney’s fees unless the arbitrator found the claims were frivolous. The court rejects this as well. First, it re-states state law on this point. Second, Washington law has a mandatory reciprocal fee provision, so whatever the effect of this provision, plaintiffs get the benefit of it as well. Finally, the provision does not limit plaintiffs right to seek fees in any way.

Although the court finds that it is not “a paragon of consumer protection” it says the agreement is not unconscionable.

__

(The ruling has been appealed.)

Case citation: Fagerstrom v. Amazon, Inc., 15-cv-96 BAS (S.D. Cal. Oct. 20, 2015)

more

Related posts:

 

The content in this post was found at http://blog.ericgoldman.org/archives/2015/12/court-enforces-arbitration-clause-in-amazons-terms-of-service-fagerstrom-v-amazon.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Can YouTube ‘Remove And Relocate’ User Videos Capriciously?–Darnaa v. Google (Forbes Cross-Post)

29 12 2016

Most of us uploading YouTube videos aren’t deeply invested in their continued availability. If YouTube removed our videos or relocated them to a different URL, we might be puzzled why but otherwise would probably shrug our shoulders. However, YouTube is the birthing ground for the next generation of music stars, and there’s a lot of money to be made from a successful viral YouTube video. When YouTube removes or relocates a video that an emerging star is investing in some marketing muscle to promote, it can disrupt the musician’s economic expectations–and, in theory, their hopes and dreams. Can YouTube make these remove/relocate decisions capriciously, or could it face legal liability for the decisions?

Several pending lawsuits against YouTube allege that it made remove-and-relocate without sufficient justification or that YouTube’s public characterization of the remove-and-relocate was misleading. YouTube won the most recent court ruling, but not as decisively as it would have liked–and with a few choice words from the judge as well.

more

Case Citation: Darnaa LLC v. Google, Inc., 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015). The initial complaint.

The content in this post was found at http://blog.ericgoldman.org/archives/2015/12/can-youtube-remove-and-relocate-user-videos-capriciously-darnaa-v-google-forbes-cross-post.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



“Modified Clickwrap” Upheld In Court–Moule v. UPS

13 12 2016

[Eric’s introduction: today Venkat and I are “celebrating” (?) TOS Arbitration Day here at the Technology & Marketing Law Blog. Independently, we each drafted blog posts about arbitration clauses in terms of service–covering different cases! We could have combined the blog posts into a single mega deluxe blog post, but who doesn’t like getting two yummy treats instead of one? So this is part 1 of our posts in honor of TOS Arbitration Day. Check back later today for Venkat’s part 2.]

Let’s review the state of play:

* courts say online contracts should be categorizable as “clickwraps” or “browsewraps”
* courts usually enforce clickwraps but not browsewraps
* despite the categories, courts don’t view clickwraps and browsewraps as abutting circles on a Venn diagram. Instead, the circles apparently are partially overlapping. This is resulting in analytical confusion
* because courts don’t understand the definitions of “clickwrap” or “browsewrap,” the courts are perceiving cases on their dockets as falling into the overlap zone
* because they think cases in the overlap zone must be novel, courts are proliferating variations of “-wrap” nomenclature
* the growing semantic ambiguity is compounding the analytical confusion

I’ve told you before that this situation is so much easier than the courts are treating it. Clickthrough agreements–which consist of visible notice to the user, an affirmative act by a user and a proper call-to-action saying that the affirmative act manifests assent–are enforceable. Let’s call everything else “not a contract” and never use the “-wrap” suffix again. Done.

Today’s case involves the shipment of an expensive item via UPS. The item allegedly arrived in poor condition. The sender says UPS mishandled it. UPS says the sender improperly packed it and denied compensation to the sender. The sender sued. UPS invoked an arbitration clause in its “UPS Tariff/Terms and Conditions of Service.”

Case citation: Moule v. United Parcel Service Co., 2016 WL 3648961 (E.D. Cal. July 7, 2016)

BONUS! HIDDEN TRACK: Salameno v. Gogo Inc., 2016 U.S. Dist. LEXIS 88166 (E.D.N.Y. July 7, 2016), echoing the befuddling and overlong Berkson v. Gogo ruling, endorses the term “sign-in-wrap”:

more

The content in this post was found at http://blog.ericgoldman.org/archives/2016/07/modified-clickwrap-upheld-in-court-moule-v-ups.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.