Court Rejects “Browsewrap.” Is That Surprising?–Long v. ProFlowers

24 03 2016

 

Plaintiff said he was not aware of the terms and never clicked on the terms when he ordered or when he received the email. The court says that enforceability of so-called “browsewrap” agreements is something yet to be addressed by California appellate courts. (!) It looks to Specht and Nguyen, from the Second and Ninth Circuits respectively. The key question under those cases is whether the presentation of the website (the user experience) would put a reasonable consumer on inquiry notice. One way to do this is to include a hyperlink in close proximity to where the user must take action. (See Fagerstrom.) Even assuming proximity of the hyperlink to where the user must take action, courts finding these contracts enforceable have typically required something to advise the users to click on the terms. ProFlowers failed that test here. The court says:

Case citation: Long v. Provide Commerce, Inc., B257910 (Cal. Ct. App. Mar. 17, 2016) [pdf].

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Related posts:

Court Enforces Arbitration Clause in Amazon’s Terms of Service–Fagerstrom v. Amazon

The “Browsewrap”/”Clickwrap” Distinction Is Falling Apart

What’s a Browsewrap? The Ninth Circuit Sure Doesn’t Know–Nguyen v. Barnes & Noble

23andMe’s Browsewrap Fails, But Its Post-Purchase Clickthrough Works Anyway–Tompkins v. 23andMe

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

Judge Can’t Decide if Facebook’s User Agreement is a Browsewrap, But He Enforces It Anyways–Fteja v. Facebook

Gmail Terms of Service Apply to reCAPTCHA During Account Formation–Rojas-Lozano v. Google

Jawbone Plaintiff Can Invoke California Choice of Law Provision in Service Agreement

If You’re Going To Incorporate Online T&Cs Into a Printed Contract, Do It Right–Holdbrook v. PCS

Clickthrough Agreement Upheld–Whitt v. Prosper

‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause–Starke v. Gilt

Some Thoughts On General Mills’ Move To Mandate Arbitration And Waive Class Actions

Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant

Users Can’t Sue Sony for Changing Online Terms to Require Arbitration – Fineman v. Sony Network Entertainment

Qwest Gets Mixed Rulings on Contract Arbitration Issue—Grosvenor v. Qwest & Vernon v. Qwest

Zynga Wins Arbitration Ruling on “Special Offer” Class Claims Based on Concepcion — Swift v. Zynga

Second Circuit Enforces Terms Hyperlinked In Confirmation Email–Starkey v. G Adventures

If You’re Going To Incorporate Online T&Cs Into a Printed Contract, Do It Right–Holdbrook v. PCS

Clickthrough Agreement Upheld–Whitt v. Prosper

The content in this post was found at http://blog.ericgoldman.org/archives/2016/03/court-rejects-browsewrap-is-that-surprising-long-v-proflowers.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Nosal Update: Ninth Circuit Hears Oral Arguments on Password Sharing and Scope of Computer Fraud and Abuse Act

2 12 2015

Seyfarth Shaw

Amy Abeloff & Robert B. Milligan
On October 20, 2015, a Ninth Circuit panel consisting of Chief Judge Sidney Thomas and Judges M. Margaret McKeown and Stephen Reinhardt heard oral argument from the U.S. Department of Justice and counsel for David Nosal on Nosal’s criminal conviction arising under the Computer Fraud and Abuse Act (CFAA).   In 2013, Nosal was found to have violated the CFAA by allegedly conspiring to obtain access to company information belonging to his former employer, executive search firm Korn Ferry, through the borrowing of another employee’s login password. He was also convicted of trade secret misappropriation under the Economic Espionage Act.

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The content in this post was found at http://www.tradesecretslaw.com/2015/10/articles/computer-fraud/nosal-update-ninth-circuit-hears-oral-arguments-on-password-sharing-and-scope-of-computer-fraud-and-abuse-act/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+TradingSecrets+%28Trading+Secrets%29 and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

 



Joomla bug puts millions of websites at risk of remote takeover hacks

2 12 2015
 Arstechnica
October 23, 2015
Dan Goodin

Millions of websites used in e-commerce and other sensitive industries are vulnerable to remote take-over hacks made possible by a critical vulnerability that has affected the Joomla content management system for almost two years.

The SQL-injection vulnerability was patched by Joomla on Thursday with the release of version 3.4.5. The vulnerability, which allows attackers to execute malicious code on servers running Joomla, was first introduced in version 3.2 released in early November 2013. Joomla is used by an estimated 2.8 million websites.

“Because the vulnerability is found in a core module that doesn’t require any extensions, all websites that use Joomla versions 3.2 and above are vulnerable,” Asaf Orpani, a researcher inside Trustwave’s Spiderlabs, wrote in a blog post. The vulnerability, and two closely related security flaws, have been cataloged as CVE-2015-7297, CVE-2015-7857, and CVE-2015-7858.

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The content in this post was found at http://arstechnica.com/security/2015/10/joomla-bug-puts-millions-of-websites-at-risk-of-remote-takeover-hacks/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Gmail Terms of Service Apply to reCAPTCHA During Account Formation–Rojas-Lozano v. Google

18 11 2015

Technology & Marketing Law Blog

August 28, 2015

Venkat Balasubramani

This lawsuit against Google alleges that Google unfairly benefits from deploying a CAPTCHA process when users sign up for free gmail accounts. Specifically, the complaint alleged that Google unnecessarily included a second image in the CAPTCHA, and it relies on users who sign up to freely transcribe “scanned images of books and newspapers, and also to decipher addresses found in images captured as part of [Google’s] Street View project.” The user is not compensated for having to transcribe the second image, but the complaint alleged that Google profited from its various digitization and transcription initiatives.

There was no dispute that the user signed up and clicked on the “I agree” to the terms of service in the process. The terms of service contain a forum selection clause, requiring disputes to be brought in the Northern District of California.

Plaintiff argued that the terms only applied to the Gmail service and the claims on the other hand arise from the reCAPTCHA service. The court rejects this argument, saying that the terms (and forum selection clause) apply to claims “arising out of or relating to” the services, and this includes the reCAPTCHA process as well.

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The content in this post was found at http://blog.ericgoldman.org/archives/2015/08/gmail-terms-of-service-apply-to-recaptcha-during-account-formation-rojas-lozano-v-google.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Clickwrap Agreement Available Only Through Hyperlink Enforceable Under New York Law

2 10 2015

Last week, the Southern District of New York followed a long line of precedent under New York law and upheld the enforceability of a website clickwrap agreement, granting a website operator’s motion to compel arbitration pursuant to a clause contained in the agreement. (Whitt v. Prosper Funding LLC, 2015 WL 4254062 (S.D.N.Y. July 14, 2015)).

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The content in this post was found at http://newmedialaw.proskauer.com/2015/07/23/clickwrap-agreement-available-only-through-hyperlink-enforceable-under-new-york-law/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.