LinkedIn Files Opening Brief with Ninth Circuit in Closely-Watched Data Scraping Dispute with hiQ

12 10 2017

In a new development in an important scraping dispute, LinkedIn appealed the lower court’s decision to grant a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block the defendant’s data scraping activities.  LinkedIn’s brief was filed on October 3, 2017.  In it, LinkedIn asserts that the relevant issue is whether the lower court “erred as matter of law by holding—contrary to the CFAA’s unambiguous text and Circuit precedent—that LinkedIn could not invoke the CFAA after LinkedIn revoked hiQ’s access to its servers by sending a particularized cease-and-desist letter and imposing technical measures to block hiQ’s data-scraping bots.”

We will be watching the developments in this case closely.

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The content in this post was found at http://newmedialaw.proskauer.com/2017/10/05/linkedin-files-opening-brief-with-ninth-circuit-in-closely-watched-data-scraping-dispute-with-hiq/ 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 Claim That Amazon’s Terms and Conditions Are an Unconscionable Contract

12 10 2017

In an unpublished opinion, the Ninth Circuit affirmed a lower court’s ruling that had sent a putative class action against Amazon over its pricing practices to arbitration, as per Amazon’s terms of service. (Wiseley v. Amazon.com, Inc., No. 15-56799 (9th Cir. Sept. 19, 2017) (unpublished)).  In finding that Amazon’s “Conditions of Use” were not unconscionable and presented in a reasonable manner, this holding differs from a Second Circuit decision from last year that declined to compel arbitration because reasonable minds could disagree regarding the sufficiency of notice provided to Amazon.com customers when placing an order through the website. (On remand, a New York magistrate judge ruled that the court should grant Amazon’s motion to compel arbitration on other grounds based upon the plaintiff’s constructive knowledge of the terms.)

 

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The content in this post was found at http://newmedialaw.proskauer.com/2017/10/05/ninth-circuit-rejects-claim-that-amazons-terms-and-conditions-are-an-unconscionable-contract/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Website Design Implicated in Two Rulings on Enforceability of Online Terms – Highlights the Importance of Legal Review of Design Decisions

7 02 2017

This past summer, we wrote about two instances in which courts refused to enforce website terms presented in browsewrap agreements.  As we noted, clickthrough agreements are generally more likely to be found to be enforced.  However, even the enforceability of clickthrough agreements is going to depend, in part, on how the user experience leading to the “agreement” is designed.  Two recent decisions illustrate the importance of web design and the presentation of the “call to action” language in determining the enforceability of a site’s clickthrough terms.

In a decision from early November, a D.C. federal court ruled that an Airbnb user who signed up on a mobile device had assented to the service’s Terms and was bound to arbitrate his claims. (Selden v. Airbnb, Inc., 2016 WL 6476934 (D.D.C. Nov. 1, 2016)).   Conversely, in a notable decision from late August, the Second Circuit refused to rule as a matter of law that the plaintiff was bound by the arbitration clause contained in Amazon’s terms and conditions because the plaintiff did not necessarily assent to and was on constructive notice of the terms when he completed the purchase in question. (Nicosia v. Amazon.com, Inc., 2016 WL 4473225 (2d Cir. Aug. 25, 2016)).

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The content in this post was found at http://newmedialaw.proskauer.com/2016/11/21/website-design-implicated-in-two-rulings-on-enforceability-of-online-terms-highlights-the-importance-of-legal-review-of-design-decisions/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Browsewrap Agreement Held Unenforceable – Website Designers Take Note!

30 01 2017

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.

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The content in this post was found at http://newmedialaw.proskauer.com/2016/07/28/browsewrap-agreement-held-unenforceable-website-designers-take-note/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Want An Enforceable Online Contract? Don’t Use A Footer Link Called “Reference”–Zajac v. Walker

30 01 2017

This lawsuit involves the purchase of items I don’t understand. Let’s just call them “thingies.” The buyer Zajac needed thingies with an appropriate rating. It bought the thingies from a distributor, Walker, then realized the thingies didn’t have the appropriate rating. Recriminations and a lawsuit ensued.

The thingies’ manufacturer, Turck, sought a venue change based on the “terms of use” section of its website. The buyer had reviewed the manufacturer’s website to confirm the thingies’ rating. The manufacturer took the position that the buyer’s website review incorporated the terms of use into the transaction. But what did the manufacturer do to draw the buyer’s attention to these terms of use? Apparently, bupkis:

the terms of use page could be accessed by clicking on a small link at the bottom of Turck’s website entitled “Reference.” Users were not prompted to read or affirmatively agree to the terms of use.

The court is totally unimpressed with the manufacturer’s arguments (yes, the court calls the TOU a browsewrap but I’ll overlook that transgression):

Merely including terms of use on a website is not sufficient to incorporate those terms into legal relations between the website operator and the user, even where the user purchases an item or downloads software from the operator’s website….

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Case citation: Zajac, LLC v. Walker Industrial, 2016 WL 3962830 (D. Maine July 21, 2016)

The content in this post was found at https://arstechnica.com/tech-policy/2016/07/photographer-sues-getty-images-for-selling-photos-she-donated-to-public/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.