In Online Terms can be Binding, even if You don’t have to Click!, I compared the enforceability of clickwrap and browsewrap agreements. This post discusses Nguyen v. Barnes & Noble, in which the U.S. Court of Appeals for the Ninth Circuit recently examined notice requirements for browsewrap agreements to be enforced.
Plaintiff Nguyen filed a class action lawsuit against Barnes & Noble because it had cancelled his online order for a Hewlett-Packard Touchpad tablet computer. (more…)
Your input is critical with respect to the specific needs of your business:
- Identify the various classes of users of your site.
- For each class, describe the business relationship between users and your site / business. Include risks and other issues that particularly concern you.
This post is adapted from my answer to a Quora question about use of a fictitious business name (FBN): Q. Must an LLC with a fictitious business name display the LLC name on its website?
A. In my opinion, an entity’s proper name and complete identification should be provided in every agreement. Agreements include website terms of service. Example showing how to include both the entity name and the FBN:
[Company Name], LLC, a California limited liability company doing business as [Fictitious Business Name], with a place of business at [address]
About a year ago, in” Educate Employees about Online Endorsements ? the FTC is Watching!” I discussed the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. It appears that at least one online site – Amazon.com – may be taking the FTC’s guidelines about paid online endorsements pretty seriously.
A prospective client called me recently. She was upset because many of the book reviews she had written on Amazon.com – which were paid for by authors – had been removed on at least two occasions.
I asked whether the reviews stated that they were paid for by the authors. She said “No.” I asked whether she was familiar with applicable FTC guidelines concerning paid online endorsements. She again said “No.”
The provisions that bear most closely on protecting website owners include those pertaining to:
- Disclaimer of warranties made by the owner
- Limitations on the extent of the owner’s liability
- Users’ warranties, especially as concerns any information that they may post
- Users’ acceptable behavior policies, which set the stage for . . .
- The owner’s right, in its sole discretion, to terminate use privileges
- Users’ obligation to indemnify the website owner against liabilities that result from user activities
- A requirement that any lawsuit related to the website be brought at a venue that is convenient for the owner
- An arbitration provision as a way to avoid litigation (though I am not a big fan of arbitration because it can be expensive and precludes small-claims court, which can be relatively quick and inexpensive)
Unfortunately, there are no definitive rules regarding the level of detail that the notice must contain. I have two guidelines that I like to follow.
Over the weekend, I answered a LinkedIn question about whether posting a copyrighted photo of another company’s product with disparaging comments about that product might be protected by the “fair use” defense to copyright infringement. I am reproducing the question and answer, in edited form, below.
Q. My website is copyrighted and the newest product is trademark and patent pending. The image was “clipped/copied” by an individual and placed on a website without my permission to do so. Am I right that this is not “fair use” of my work?
A. The “Fair Use” Defense: One Term, Two Different Meanings discusses the four elements of copyright fair use. The analysis always is highly fact-specific, so it is difficult to say whether use on cpaptalk.com qualifies for that defense, but I think there is a reasonable argument that it does.
The following question was posed recently on LinkedIn: Let’s say that I want to scrape amazon’s and ebay’s product reviews and use on another site? I want to understand the legal fall-out that may happen in doing so.
Here, slightly edited, is the answer that I provided:
- You would be committing copyright infringement.
- You would be breaching Amazon’s Conditions of Use, which expressly prohibit “any use of data mining, robots, or similar data gathering and extraction tools”.
- Similarly, you would be breaching ebay’s User Agreement, which says that “You agree that you will not use any robot, spider, scraper, or other automated means to access the sites for any purpose without our express handwritten permission.”
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.