Free for a Fee

By Eric Goldman

Scherillo v. Dun & Bradstreet, Inc., 2010 WL 537805 (E.D.N.Y. Feb. 17, 2010)

I teach my Cyberspace Law students that the most effective online contract formation process is a “mandatory non-leaky clickthrough agreement”:

* mandatory = the user cannot proceed to the destination without going through a screen soliciting their consent to the user agreement.
* non-leaky = there are no alternative ways the user can reach the destination. I realize this is redundant with “mandatory,” but I remind students that a seemingly mandatory process can have leaks. For example, if customer support representatives will manually set up user accounts occasionally, the mandatory online process has become leaky because now a few users reached the destination without consenting to the agreement.
* clickthrough = the user manifests assent to the contract by clicking, and the user is told that the click signifies assent.

more

The content in this post was found at http://blog.ericgoldman.org/archives/2010/02/clickthrough_ag_1.htmand was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

A website’s terms and conditions are indeed enforceable, even if users weren’t forced to actually go to a T&C page at any point in time. That’s according to the Missouri Court of Appeals, anyway, which has upheld a previous ruling in a lawsuit that brought into question the enforceability of ServiceMagic’s Terms of Use. Still, one of the judges made clear that only reasonable terms would be upheld—no jumping on one foot while spinning plates for you.

The content in this post was found at http://feeds.arstechnica.com/arstechnica/BAaf 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

Crawford v. Consumer Depot, Inc., 05-3242 (Tenn. County Ct. Dec. 9, 2009)

Essex and Consumer Depot are competitors in the eBay consignment business. According to the court, prior to 2005 Essex used to allow its employees to bid on its auctions, and in 2004 one of its executives was personally suspended for shill bidding. Consumer Depot allegedly accused Essex of shill bidding, sparking a lengthy multi-front battle between the two companies (dating back to summer 2005).

In 2005, eBay suspended Essex for alleged shill bidding. eBay says it made an independent assessment (easily supported because of Essex’s past practices) and didn’t rely on reports from Consumer Depot. While Essex was negotiating with eBay over possible reinstatement, Essex tried to unload its warehouse by hiring independent contractors who worked very closely with Essex. eBay decided that this end-run was uncool and terminated Essex. Essex eventually sued eBay for the termination.

eBay defended in part on its user agreement. Essex attacked the user agreement in a number of ways, including:

more

The content in this post was found at http://blog.ericgoldman.org/archives/2010/01/alleged_shill_b.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Since the Seventh Circuit opinion in ProCD v. Zeidenberg (7th Cir. 1996), judicial analysis of standard form contracts has proceeded along lines that have, in general, been more favorable to the efforts of sellers and licensors seeking to enforce the provisions of “agreement now, terms later” contracts. . . .

Over time, the ProCD v. Zeidenberg approach to later-presented terms has become the majority view. But just because a court adopts the ProCD v. Zeidenberg analysis, it will not necessarily find that a “terms later” contract is enforceable. That was the case in Defontes v. Dell, decided on December 10 by the Rhode Island Supreme Court.

The case involves a dispute between Dell and consumers who claim they were wrongfully assessed a state tax on their purchase of service contracts in conjunction with a computer purchase. . . .

In endorsing the ProCD v. Zeidenberg analysis of later-presented terms, the Rhode Island Supreme Court commented:

More

The content in this post was found at http://newmedialaw.proskauer.com/2009/12/articles/contracts/arbitration-clause-in-computer-purchase-contract-unenforceable-where-consumers-right-to-reject-additional-contract-terms-was-not-clearly-explained/?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]

Sedersten v. Taylor, 2009 U.S. Dist LEXIS 114525 (Case No. 09-3031-CV-S-GAF) (W.D. Mo. Dec. 9. 2009).

A Missouri district judge rejected a plaintiff’s attempt to unmask an online commenter based in part on the argument that language in the website’s privacy policy resulted in a waiver of anonymity.

more

The content in this post was found at http://blog.ericgoldman.org/archives/2009/12/online_commente.htm 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

Riggs v. MySpace, Inc., 2:09-cv-03073-GHK-CT (C.D. Cal. Sept. 17, 2009)

This case has received some modest attention throughout its history (including a quick mention here when the court upheld MySpace’s user agreement), but the district court’s dismissal of the case appears to have been completely overlooked.

more

The content in this post was found at http://blog.ericgoldman.org/archives/2009/11/myspace_quietly.htm 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

United States v. Drew, 2:08-cr-00582-GW (C.D. Cal. Aug. 28, 2009)

Almost 2 months ago, the judge presiding over the Lori Drew trial orally announced that he intended to rule in favor of Drew, but it was a little hard to decipher his statements without a written ruling. On Friday, the judge issued his written ruling, which indicates that he granted Drew’s FRCP 29(c) motion for a post-verdict acquittal. I haven’t seen any announcement of the prosecution’s response and whether they plan to appeal. This ruling also has no direct bearing on any civil claims against Drew. Nevertheless, for now, Lori Drew has been fully acquitted of the criminal charges brought against her.

more

The content in this post was found at http://blog.ericgoldman.org/archives/2009/08/lori_drew_crimi.htmand 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

Health Grades, Inc. v. Robert Wood Johnson University Hospital, Inc., 06-CV-02351-JLK (D. Colo. June 19, 2009)

A Colorado judge has reached the remarkable conclusion that a hospital publicizing its star ratings and other recognition from a third party rating service in its marketing material might be committing copyright and trademark infringement. This is a little like saying that it could be copyright and trademark infringement for a law school to include its US News rankings in its marketing material or for a book publisher to issue a press release announcing its ranking on the New York Times bestseller list. CRAZY.

more

The content in this post was found at http://blog.ericgoldman.org/archives/2009/07/republishing_th.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

“MySpace mom” Lori Drew has had her misdemeanor guilty verdict overturned by the federal judge handling the case, the LA Times reports. Violating a website’s terms of use is not, it seems, a federal crime after all.

Horrible things aren’t always crimes

The guilty verdict against Lori Drew, prosecutors crowed, would send an “overwhelming message” to online bullies. Though she escaped conviction on felony charges, the 49-year-old Missouri mom could have still faced three years in prison or fines of up to 0,000 for launching an online harassment campaign that ended in the suicide of a teenage neighbor. Drew was due to be sentenced today.

But the “message,” legal observers worried, may be that anyone who uses a website without paying close attention to those ubiquitous Terms of Service risks committing a federal crime. The judge shared those concerns.

Click here to read the rest of this article

The content in this post was found at http://feeds.arstechnica.com/arstechnica/BAaf and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

An open source software project got some good news this week, as a judge dismissed a suit brought by the maker of a commercial alternative. Thomson Reuters, which makes EndNote, an academic reference management product, had filed suit against George Mason University, claiming that its support of the open source Zotero project, which imports EndNote files, was in contravention of the university’s license to EndNote. The suit, which requested an injunction against the distribution of Zotero, has now been dismissed. Depending on whether Thomson Reuters appeals or refiles the suit, this may leave Zotero in the clear.

Click here to read the rest of this article

The content in this post was found at http://feeds.arstechnica.com/arstechnica/BAaf and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.