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.
The amount of damages, if the Navy loses, could go up substantially. Bitmanagement also noted that, in addition to licensing fees, it is seeking pre- and post-judgement interest, punitive damages, legal costs, attorney fees, and statutory damages that could amount to $150,000 per infringement.
According to the lawsuit (PDF) filed in the US Court of Federal Claims:
We blog pretty much every scraping case we see; we just don’t see many of them. As I’ve told you before, scraping is ubiquitous but of dubious legality. Today’s case reiterates just how hard it is for scrapers to win in court if challenged.
The case involves competitors in the online coupon industry. The facts alleged by the plaintiff look very typical for competitive scraping. CouponCabin alleges that Savings.com and several other sites scrape offers from its site, either on an automated or manual basis. In response, CouponCabin allegedly deployed technological blocks against “all traffic, including legitimate users, emanating from certain cloud computing providers and internet service providers identified as being used particularly heavily by the Defendants to conduct scraping activities.” CouponCabin also allegedly sent cease-and-desist letters to most of the defendants. Despite the technological blocks and demand notices, CouponCabin alleges “the Defendants knowingly and intentionally circumvented [the Plaintiff’s] security measures in order to continue their data scraping activities.”
The Oculus team has reversed course on one of its most unpopular decisions since launching the Rift VR headset in April: headset-specific DRM. After weeks of playing cat-and-mouse to block the “Revive” workaround that translated the VR calls of Oculus games to work smoothly and seamlessly inside of the rival HTC Vive, Oculus quietly updated its hardware-specific runtime on Friday and removed all traces of that controversial DRM.