Free for a Fee

It is a common practice for Web site providers who accept submissions of user-generated content to include a license provision in their “Terms of Use” to obtain rights to use the content. Rather than relying on the uncertain scope of an implied license, the provider can clarify, and hopefully avoid disputes over, the scope of its right to use the user’s work. A typical copyright license conveys to the provider a broad, non-exclusive license to reproduce, edit, modify and otherwise use the user-generated content, while implicitly (and in some cases, explicitly) providing that the ownership of the copyright in such content is retained by the user.  The use of a “clickwrap” agreement to convey a non-exclusive license is generally well-accepted and non-controversial.

However, under Copyright Act Section 501, a non-exclusive licensee may not bring an action for copyright infringement. See, e.g.,  HyperQuest, Inc. v. N’Site Solutions, Inc., 632 F.3d 377 (7th Cir. Jan. 19, 2011). Accordingly, a Web site provider that seeks to litigate based on an improper use of user-generated content may need more. They may in fact need an exclusive license or an actual transfer of ownership in the underlying copyright.  The question is, can one obtain an exclusive license or assignment of copyright through online terms of use?

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The content in this post was found at http://newmedialaw.proskauer.com/2012/12/20/assignment-of-copyright-through-terms-of-use-does-e-sign-make-it-ok-a-tool-for-b2b-sites-dealing-with-unauthorized-access-to-their-content/?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.

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The content in this post was found at http://arstechnica.com/gaming/2013/01/sim-city-beta-eula-includes-company-wide-ban-for-unreported-bugs/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

In an important opinion on the enforceability of online contract terms, Senior Circuit Judge Robert D. Sacks walks through the last decade and a half of online contracting law on the way to invalidating an arbitration provision in an agreement involving a so-called Web loyalty program. Judge Sacks concluded in Schnabel v. Trilegiant Corp., 2012 U.S. App. LEXIS 18875 (2d Cir. 2012), that an arbitration provision contained in an e-mail sent to consumers after they enrolled in such a program did not provide sufficient notice to support a conclusion that they had assented to arbitrate.

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The content in this post was found at http://newmedialaw.proskauer.com/2012/09/25/in-clickwrap-data-pass-contract-dispute-second-circuit-sacks-e-mail-notice-of-post-transaction-terms/?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.

[Post by Venkat Balasubramani]

Abreu v. Slide, Inc., 12 0042 WHA (N.D. Cal.; July 12, 2012)

This is a motion to compel arbitration filed by Google and Slide, the developer of SuperPoke! Pets. As mentioned by Eric in this initial post about the case, SuperPoke! is a game developed by Slide, which was later bought by Google. The game allowed you to care for “virtual pets” and earn coins. You could use these coins to customize the environment for your virtual pets. You could also buy virtual currency which you could use to purchase certain premium items. Users apparently bought a bunch ($6MM worth, according to an earlier filing by Google) of virtual currency before Google ultimately shut the game down. Users sued, alleging that termination of SuperPoke! Pets by Google and Slide violated California consumer protection laws and California common law. Defendants moved to dismiss, or in the alternative to force the consumer-plaintiffs to arbitrate their claims.

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The content in this post was found at http://blog.ericgoldman.org/archives/2012/08/judge_alsup_sen.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

[Post by Venkat Balasubramani with comments by Eric]

Weingand v. Harland Financial Solutions, C 11 3109 EMC (N.D. Cal.; June 19, 2012)

Weingand involves claims brought by an employee, and proposed counterclaims brought by the employer against the employee. Nor surprisingly, the employer tried to assert claims under the Computer Fraud and Abuse Act (and California Penal Code section 502, a state anti-hacking statute). The court grants the employer’s motion for leave to amend, finding that the counterclaims would survive a 12(b)(6) motion.

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The content in this post was found at http://blog.ericgoldman.org/archives/2012/08/employees_poste.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

[Post by Venkat Balasubramani, with comments from Eric]

WEC Carolina Energy Solutions LLC v. Miller, et al., 2012 WL 3039213 (4th Cir.; July 26, 2012)

We’ve blogged about the Computer Fraud and Abuse Act being stretched by plaintiffs in civil (particularly employment) cases. The Ninth Circuit in Nosal recently gave the statute a more limited interpretation, although it left some things unclear. (Here’s our blog post on the Nosal en banc panel opinion: “Comments on the Ninth Circuit’s En Banc Ruling in U.S. v. Nosal.”) The Fourth Circuit recently followed Nosal’s approach and went one step further. Both of these rulings make it much more difficult for employers to use the Computer Fraud and Abuse Act against departing employees.

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The content in this post was found at http://blog.ericgoldman.org/archives/2012/07/4th_circuit_lim.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

May 19,  2011 [and below, March 16, 2012]

In what may represent a new wave in an interesting challenge to the viral nature of social media marketing, a recently filed putative class action asserts a right of publicity claim against Facebook in connection with the service’s “Like” and “Friend Finder” features.

J.N. v. Facebook, Inc.,  No. 11-cv-2128 (E.D.N.Y.) (complaint) is an action brought by the parent of a minor user of the Facebook social networking site, alleging that the minor’s name and likeness was appropriated for commercial advantage without the consent of his parents, as required by New York Civil Rights Law § 50. Section 50 provides that a living person’s name, portrait or picture may not be used for advertising purposes without the person’s written consent, “or if a minor of his parent or guardian.”

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Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook

By Eric Goldman

E.K.D. v. Facebook, Inc., 3:12-cv-01216-JCS (S.D. Ill. March 8, 2012). The complaint.

This opinion reaches two interesting conclusions. First, it says children-users can’t disaffirm Facebook’s terms of service (TOS) so long as they keep using the site. Second, it says the children-users are bound to Facebook’s TOS even though the court thinks it’s a browsewrap. Neither ruling is unprecedented, but both rulings represent a very favorable bounce for Facebook. Yet, for reasons I’ll address in a moment, I’m not 100% clear why Facebook wanted this outcome.

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The content in this post was found at http://newmedialaw.proskauer.com/2011/05/19/federal-lawsuit-alleges-infringement-of-minors-new-york-right-of-publicity-by-facebook-like-and-friend-finder-features/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20NewMediaAndTechnologyLaw%20%28New%20Media%20and%20Technology%20Law%29 and http://blog.ericgoldman.org/archives/2012/03/facebooks_brows.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

[Post by Venkat Balasubramani]

Koch Industries, Inc. v. Does, 10CV1275DAK (D. Utah; May 9, 2011) [.pdf]

EFF, Public Citizen and other similar organizations have excellent resources for creators of parody and satire on the internet. A recent case (litigated by Public Citizen) illustrated a few pitfalls a plaintiff–who is seeking to shut down such non-commercial content–may face. A commercial motivation does not automatically doom a parody or satire defense, but the total absence of a commercial motive will neutralize a plaintiff’s claims.

Other coverage:

“Utah Court Strikes Blow for Free Speech, Dismisses Trademark and CFAA Claims Against Political Activists” (EFF)
“Court Protects Hoax Press Release” (Bill McGeveran)
“In Which We Lose Our Funding And Are Reduced To Eating Gravel” (Popehat)
“In Koch spoof case, judge favors First Amendment” (CitizenVox)

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The content in this post was found at http://blog.ericgoldman.org/archives/2011/07/court_smacks_do_1.html and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

By Eric Goldman

Crabb v. GoDaddy.com, Inc., 2:10-cv-00940-NVW (D. Ariz. Sept. 27, 2011)

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The content in this post was found at http://blog.ericgoldman.org/archives/2011/10/godaddy_mismana.html and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

We reported that Microsoft was taking away your right to sue the company in the latest Xbox 360 update by forcing gamers into neutral arbitration, while also blocking consumers from joining class-action lawsuits… unless they opted out of the clause by mailing a letter to Microsoft. It seems this isn’t actually the case, as Microsoft has told Kotaku that you can’t opt out: you need to give up these rights if you’d like to continue using your Xbox 360.

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The content in this post was found at http://arstechnica.com/gaming/2011/12/you-cant-opt-out-of-the-no-lawsuits-xbox-360-tos-update-after-all/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.