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 content in this post was found at http://blog.ericgoldman.org/archives/2012/10/how_zappos_user.htm 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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Categories : Terms of Service
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.
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Categories : Digital Rights Management, Terms of Service
3
02
2013
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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Categories : Copyright, Terms of Service
2
02
2013
Here at Ars Technica, we’re no strangers to overzealous EULAs. But a clause in the EULA for the beta version of Electronic Arts’ new Sim City might take the cake for punishing users for seemingly innocuous actions… or lack of actions.
As Twitter user Dan Teasdale tweeted recently (and SideQuesting promoted), the end-user license agreement you have to sign to get access to the new Sim City beta mentions that “it is your responsibility to report all known bugs, abuse of ‘bugs’, ‘undocumented features’ or other defects and problems related to the Game and Beta Software to EA as soon as they are found (‘Bugs’).” That’s not so bad, but it gets a little bit more concerning when the EULA lays out the penalties for failing to report a bug you come across.
“If you know about a Bug or have heard about a Bug and fail to report the Bug to EA, we reserve the right to treat you no differently from someone who abuses the Bug. You acknowledge that EA reserve the right to lock anyone caught abusing a Bug out of all EA products.”
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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.
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Categories : Terms of Service
25
09
2012
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.
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Categories : Terms of Service
