Clickthrough Agreement Upheld–Whitt v. Prosper

20 07 2015

I’m way behind in blogging clickthrough agreement cases, but I’m prioritizing this opinion because of its simplicity. Whitt, who is deaf, sought a loan via a “peer-to-peer lending service” called Prosper. To confirm his identity, Whitt needed to make a phone call. He tried to use a Video Relay Service, but Prosper allegedly refused a call made that way. Whitt claims the refusal violated the Americans With Disabilities Act and related state laws.

To apply for the loan, Whitt allegedly had to agree to Prosper’s Borrower Registration Agreement, which required applicants to click a box adjacent to the bolded text “Clicking the box below constitutes your acceptance ofthe borrower registration agreement.”

 

The court’s cites include Fteja v. Facebook, Zaltz v. JDate, Nicosia v. Amazon, Starke v. Gilt and others.

Case citation: Whitt v. Prosper Funding LLC, 2015 WL 4254062 (S.D.N.Y. July 14, 2015)

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CFAA and SCA Do Not Prohibit Creation Of A Fake Facebook Page

10 07 2015

The defendants in a case pending in Chicago federal court were accused of contravening Facebook’s terms of use by accessing its computers in order to create a phony page and then using it to ridicule someone. In Bittman v. Fox, Case No. 14 C 8191 (N.D.Ill., June 1, 2015) (Holderman, J.), the court held that those allegations do not state a cause of action under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, or the Stored Communications Act, 18 U.S.C. § 2707.

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Judge overturns conviction of former Goldman Sachs programmer

10 07 2015

The New York State Supreme Court has overturned the second conviction of Sergey Aleynikov, a former programmer accused of stealing high-frequency trading source code after leaving Goldman Sachs in 2009.

The Russian-American programmer, who was featured in the book Flash Boys, was previously convicted in federal court in 2010 on one count of stealing trade secrets and one count of transporting stolen property.

He was released from prison when the United States Court of Appeals for the Second Circuit overturned the conviction in 2012.

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The “Browsewrap”/”Clickwrap” Distinction Is Falling Apart

29 06 2015

It is somewhat surprising that, in 2015, courts are still hashing out online consumer contract formation issues. After all, the seminal case, Specht v. Netscape, was decided over a dozen years ago. Yet, a few recent cases show that companies often don’t get the contracting process right. In all or most of these cases, the companies are trying to push the disputes into arbitration (on an individual, rather than a class-wide basis). So the result of a flawed contract formation often means that a company has to litigate a claim in court rather than a more convenient and less expensive forum.

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Court Rejects Bizarre Attempt To Scrub Consumer Review–Goren v. Ripoff Report

29 06 2015
I previously blogged about this matter (see also Venkat’s update). A Massachusetts attorney, Goren, was unhappy about a user review of his law firm posted to Ripoff Report, which is well-known for not removing user posts. The plaintiffs sued the user for defamation in state court; the user no-showed. The plaintiffs got a default judgment and convinced the judge to assign the author’s copyright as part of the relief. The plaintiffs then turned around and sued Ripoff Report for copyright infringement for continuing to publish the review. Although this particular method of getting a review’s copyright via a default judgment was novel, copyright-based workarounds to Section 230 are well-known and usually problematic. This week, the court rejected the lawsuit.

 

Case citation: Small Justice v. Xcentric Ventures, 1:13-cv-11701-DJC (D. Mass. March 27, 2015)

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Court Rules That Kids Can Be Bound By Facebook’s Member Agreement

17 12 2014

The status of kids’ ability to form contracts via online terms of service was somewhat uncertain over the last several years, with a few Facebook-related rulings raising questions. A group of minor plaintiffs who opted out of the Fraley v. Facebook Sponsored Stories settlement brought suit for violation of their publicity rights under an Illinois statute.

A recent ruling shuts out their claims, and gives some clarity to the online contracting landscape for minors.

The key question in front of Judge Seeborg was whether the contract at issue between minors and Facebook — essentially granting a publicity rights release –- was one of the narrow types of contracts with minors that were void, or if the contract was merely voidable under California Family Code 6701, et seq. Section 6701 sets forth certain exceptions to the general rule of contract voidability for minors—i.e., a minor cannot:

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Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights

15 12 2014

This is a lawsuit alleging that LinkedIn improperly mined users’ contact lists and sent them repeated invitation emails. While Judge Koh eliminated the Stored Communications Act and California anti-hacking statute claims, a chunk of the lawsuit remains. Harvesting contact lists remains a risky business. (See also Path.)

Case citation: Perkins v. LinkedIn, 13-CV-04303-LHK (N.D. Cal. June 10, 2014)

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How To Get Your Clickthrough Agreement Enforced In Court–Moretti v. Hertz

9 12 2014

 

So, by now, you know that if you want an enforceable online agreement, you need to implement it as a mandatory clickthrough. With that settled, it’s time to address an advanced topic: what evidence can you offer a judge to uphold your clickthrough when plaintiffs challenge the mechanical aspects of its implementation?

Case citation: Moretti v. Hertz Corporation, 2014 WL 1410432 (N.D. Cal April 11, 2014)

Related posts:

* Court Rules That Kids Can Be Bound By Facebook’s Member Agreement
* Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram
* Effort to Game Website User Agreement Rules Fails -– Traton News v. Traton Corp.
* JDate Member Agreement Upheld–Zaltz v. JDate (Forbes Cross-Post)
* How Zappos’ User Agreement Failed In Court and Left Zappos Legally Naked (Forbes Cross-Post)
* Barnes & Noble’s Online Contract Formation Process Fails –Nguyen v. Barnes & Noble
* Court Disregards Check-the-Box Agreement and Doesn’t Enforce Venue Clause — Dunstan v. comScore
* Forum Selection Clause in “Submerged” Terms of Service Presumptively Unenforceable — Hoffman v. Supplements Togo
* Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant
* Clickthrough Agreement With Acknowledgement Checkbox Enforced–Scherillo v. Dun & Bradstreet
* Contract Formed Even If Customer Never Received It–Schwartz v. Comcast

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23andMe’s Browsewrap Fails, But Its Post-Purchase Clickthrough Works Anyway–Tompkins v. 23andMe

8 12 2014

You may recall 23andMe’s legal troubles last Fall, when the FDA launched a big smackdown over selling genetic tests. In the wake of the FDA takedown, the class action lawyers moved in for their cash grab. 23andMe defended with an arbitration clause, but there’s a big problem: 23andMe didn’t display any T&Cs when the consumer purchased its product. So how did 23andMe successfully move this case into arbitration despite its jaw-dropping gaffe? Read on…

Case citation: Tompkins v. 23andMe, Inc., 2014 WL 2903752 (N.D. Cal. June 25, 2014)

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Fair Use Likely Protects Discussion of Blog Post and Comments

2 12 2014

This is a lawsuit between pro se parties. As the court notes, the feud between the parties largely took place online, but eventually “found its way into federal court”. Plaintiff is the publisher the “Hogewash!” blog.

Defendant is a “retired writer” who publishes several books and maintains websites, including patriot-ombudsman.com. Plaintiff generally wrote the content for the blog, but he also acquired content from third parties, including a particular blog post authored by a pseudonymous writer identified as “Paul Krendler” (which previously appeared in thingsmanszombie.wordpress.com). Plaintiff’s blog allowed comments and were subject to a terms of use:. . .

The parties exchanged numerous claims between them. This particular ruling addresses only plaintiff’s request for injunctive relief for his copyright claims.

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