Browsewrap Agreement Held Unenforceable Against Consumer Due to Insufficient Notice

30 11 2014

[ed, precis

could be very important…

the design has to not only OFFER a link to the TOS, but it has to indicate that users should go there AND once they get there, the stuff has to be intelligible.]


The content in this post was found at http://newmedialaw.proskauer.com/2014/09/08/browsewrap-agreement-held-unenforceable-against-consumer-due-to-insufficient-notice/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NewMediaAndTechnologyLaw+%28New+Media+and+Technology+Law%29 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 Plaintiffs’ Bad Misreadings of eBay’s User Agreement–Block v. eBay

3 04 2014

The plaintiffs attacked eBay’s “Automatic Bidding System” (sometimes called “proxy bidding”). Bidders list their maximum bid but only bid an increment above the current bid. As new buyers show up, eBay’s software keeps automatically bidding in specified increments until the bidder’s maximum bid is reached. It’s a pretty intuitive process, and I grasped it fully with my first eBay purchase 15 years ago.

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The content in this post was found at http://blog.ericgoldman.org/archives/2014/04/ninth-circuit-rejects-plaintiffs-bad-misreadings-of-ebays-user-agreement-block-v-ebay.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram

24 03 2014

Instagram revised its terms of service in December 2012. The revisions (1) stated that Instagram was disclaiming “ownership of content” posted by users, as opposed to disclaiming “any ownership rights in content” posted by users; (2) broadened the scope of the license granted by users to allow Instagram to sublicense user content and do so without restrictions; (3) added a liability waiver; and (4) added an arbitration provision. Instagram provided users with advance notice of the changes, letting users know on December 18, 2012 that the new terms would go into effect in a month (on January 19, 2013).

Rodriguez (the plaintiff), continued to use Instagram following January 2013, although she opted out of the arbitration provision. Her predecessor plaintiff (for whom she later substituted in) filed a lawsuit in federal court, but Judge Alsup dismissed that lawsuit for lack of federal jurisdiction. Judge Alsup’s dismissal was without prejudice to plaintiff’s attempt to file in state court, and Ms. Rodriguez pursued that avenue. She asserted claims for breach of the duty of good faith and fair dealing and violations of California’s unfair competition law. Her claims failed.

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The content in this post was found at http://blog.ericgoldman.org/archives/2014/03/court-blesses-instagrams-right-to-unilaterally-amend-its-user-agreement-rodriguez-v-instagram.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Feds arrest “most hated man on the Internet” in revenge porn hacking case

11 02 2014

As the founder of one of the first highly profitable sites to post nude photos of people against their will, 27-year-old Hunter Moore had already been branded the most hated man on the Internet. On Thursday, he was arrested on federal charges claiming that he paid a man to break into the e-mail accounts of hundreds of victims and steal sexually explicit images that later showed up on Moore’s notorious isanyoneup.com site.

According to an indictment filed in federal court in Los Angeles, Moore paid $200 or more per week for images that he knew were obtained by illegally accessing the e-mail accounts. To cover his tracks, he used PayPal accounts that weren’t linked to his identity and at one point created new e-mail addresses and deleted data tied to past hack attacks. Moore’s arrangement with Charles “Gary” Evens, who is now 25, began at an unknown date and lasted until about May 2, 2012, prosecutors alleged in the 15-count charging document.

According to the indictment:

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The content in this post was found at http://arstechnica.com/tech-policy/2014/01/feds-arrest-most-hated-man-on-the-internet-in-revenge-porn-hacking-case/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



No Claim Based on Perez Hilton’s Publication of Unsolicited but Inflammatory Reader Email – Wargo v. Lavandeira

24 11 2013

[Post by Venkat Balasubramani]

Wargo v. Lavandeira, JAMS Arbitration No. 1220041183 (Mar. 24, 2013)

Lavandeira runs the popular Perez Hilton website, which has been involved in its fair share of legal disputes.

In response to an item (presumably about Angelina Jolie—the dispute stems from an event in 2007!) posted by Perez, Wargo sent him the following email:

Perez you are a FAT GAY PIG! Angelina is a ugly whore! You love her because she is a Fag lover! Your brother is a gay little jerk just like your fat ugly ass! MANGELINA is a disgusting gross skank.

The subject line of the email read: “I Hate Skankelina the Homewrecker.” The opinion does not disclose any facts indicating that Wargo and Lavendeira had a business or other relationship. [What would prompt a stranger to send such an animated email to Perez left me scratching my head, but to each her own, I guess.]

Perez promptly published the email, along with Ms. Wargo’s email address. Unfortunately for Ms. Wargo, she had sent the above email using her work email address. As a result, executives at the company she worked at “received a flood of angry emails protesting [Ms. Wargo’s] comments.” Wargo’s employer turned around and fired her.

The dispute raised the question of whether Lavandeira’s publication of the email violated the terms of PerezHiton.com website.

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The content in this post was found at http://blog.ericgoldman.org/archives/2013/04/no_claim_based_1.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Yahoo’s User Agreement Fails in Battle Over Dead User’s Email Account–Ajemian v. Yahoo

24 11 2013

[Post by Venkat Balasubramani]

Ajemian v. Yahoo!, 12-P-178 (Mass. Ct. App. May 7, 2013)

This is a very interesting dispute that raises the question of ownership over digital assets after a person’s death.

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Google’s Forum-Selection Clause Upheld Again–Rudgayzer v. Google

24 11 2013

Over the years, Google has defended its standardized agreements numerous times in court. As with its litigation portfolio generally, Google has had an excellent success rate in these cases. Recently, another court upheld Google’s member agreement–not a surprising outcome, but still worth a brief note.

This case is part of the detritus of Google Buzz. Plaintiffs sued Google in New York for ECPA violations associated with Buzz. Google invoked its forum selection clause to shift the case to California, which reads:

Case Citation: Rudgayzer v. Google, Inc., 2013 WL 6057988 (E.D.N.Y. Nov. 15, 2013). The complaint.

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Creating Parody Social Media Accounts Doesn’t Violate Computer Fraud & Abuse Act – Matot v. CH

1 10 2013

[Post by Venkat Balasubramani]

Matot v. CH, et al, 13-cv-153-TC (D.Or.) (Report and Recommendation, Aug. 19, 2013) (Order Dismissing Lawsuit, Sept. 26, 2013)

This is a strange lawsuit brought by high school principal who alleged that defendants (students) created social media accounts using the principal’s name and likeness. Defendants allegedly posted materials, including some which were obscene, that caused his reputation to be diminished.  He brought suit against defendants and their parents, alleging claims under the Computer Fraud and Abuse Act and for defamation and negligent supervision.

On a motion to dismiss brought by one of the defendants, the court finds that plaintiff failed to adequately allege a cause of action under the CFAA. Reviewing the CFAA case law, the court says that plaintiff’s cause of action is premised on defendants’ use of protected computers beyond the scope of authorization (i.e., use in a way that “exceeded authorized access”). Finding that Nosal, Brekka, and US v. Drew all frowned upon this as a legal theory (particularly when restrictions are contained in terms of use agreements), the court rejects the claim. In front of the magistrate judge, plaintiff requested leave to add a RICO claim, but the judge rejects this:

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How Zappos’ User Agreement Failed In Court and Left Zappos Legally Naked (Forbes Cross-Post)

19 02 2013

By Eric Goldman

In re Zappos.com Inc., Customer Data Security Breach Litigation, 2012 WL 4466660 (D. Nev. Sept. 27, 2012).

In January, Zappos (part of $AMZN) announced a massive data security breach affecting 24 million consumers.  As typically happens in these situations, plaintiffs’ class action lawyers swarmed over Zappos for the breach, filing dozens of lawsuits.  Zappos tried to send the lawsuits to arbitration based on an arbitration clause in its user agreement.  Recently, a federal court struck down Zappos.com’s user agreement, denying Zappos’ arbitration request.  This is an unfortunate ruling for Zappos, because its contract–now dead–would have been quite helpful in combating this high-profile and potentially very expensive data security breach lawsuit.   More importantly, the mistakes Zappos made in its user agreement–though common throughout the Internet–are completely and easily avoidable.  This post will make some suggestions for how to avoid Zappos’ fate.

Nomenclature note: “user agreement” synonyms include “terms of service”/”TOS,” “terms of use”/”TOU,” “end user license agreement”/”EULA,” and “member agreement.”

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The long, frustrating road to recovering my Wii downloads

4 02 2013
Last month, when a combination of overly stringent DRM and aging hardware trapped $400+ of my purchased downloadable games on my old Wii, I promised I would give an update on the results of Nintendo’s $65 repair program. Well, the repaired system came back this weekend, and I was finally able to transfer most of my saved and purchased content over to the Wii U. Of course, the ordeal wouldn’t be complete without a few final hassles for good measure.First, the bad news: the memory problem afflicting my launch-era Wii meant Nintendo had to replace the main circuit board for the system, including all the save data and personal settings that were contained on the Wii’s internal system memory. Most of my important save files were backed up to an SD card, but I did lose the uncopiable save files for games like Super Smash Bros. Brawl and Super Mario Kart Wii. I’ll have to play through those games again if I want to re-unlock the characters and courses I had already earned. Such is life. Frankly, I’m more relieved that my 100 percent completion files on games like Super Mario Galaxy and Punch-Out! were safe.

On the plus side, Nintendo also replaced the disc drive and cleaned the exterior of the system, so my six-year-old Wii is now practically factory fresh. The system came back with a new serial number, too, making me wonder why they didn’t just give me an entirely new console when it was clear the memory was shot (then again, maybe they did).

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The content in this post was found at http://arstechnica.com/gaming/2012/12/the-long-frustrating-road-to-recovering-my-wii-downloads/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.