In Changing Online Terms of Use? Be Sure to Give Notice First!, I discussed a case that held that merely changing a website’s online terms does not bind users to the new terms – the users must receive notice that the terms have changed and how they have changed. This post discusses a recent case (Schnabel v. Trilegiant Corp.) that comes to a consistent conclusion from a different direction: Merely sending an email that adds a provision to existing online terms does not bind users to that provision.
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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 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. She again said “No.”
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The following is taken almost verbatim from my answer to a Quora question and the comments that followed. Q. Was the WikiLeaks iPhone app really violating the Apple App Store “Terms of Service”? Apple spokesperson stated that “Apps must comply with local laws and may not put an individual or group in harm’s way.” Is that actually the case?
A. Yes (in my opinion). Section 3.2(b) of the iPhone Developer Program License Agreement says:
You will not use the Apple Software or any services for any unlawful or illegal activity, nor to develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful or illegal act[.]
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This post is based on my response to a LawPivot question from an entrepreneur who wanted to know which protective provisions should be included in his website’s terms of use.
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)
Check out all posts about online terms of use.
Photo credit: gulden erikli tüllük via stock.xchng
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
In “Changing Online Terms of Use? Be Sure to Give Notice First!“, I explained that if you are going to change a website’s terms of use, you first need to provide notice that the terms have been changed and explain how they have been changed. This post – based on a Quora question and my answer – discusses how detailed the notice must be.
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.
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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.
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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.”
- Other companies’ sites with well-thought-out terms of use have similar prohibitions.
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.
This past December, a Missouri Court of Appeals held that a user was bound by a website’s terms and conditions, even though she was not obligated to click to signify assent to those terms (Major v. ServiceMagic, Inc.).
The court noted that where a user is obligated to click to signify agreement to terms, such “clickwrap” agreements are routinely enforced. Where clicking is not required, a site’s “browsewrap“ agreement usually will be upheld if the user has actual or constructive knowledge of the terms and conditions before using the site.
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Startup entrepreneurs always are looking for ways to save money. A question that I receive from time to time: Is it possible to prepare a website Privacy Policy without a lawyer’s help?
Simply copying another company’s Privacy Policy is a mistake, because two companies rarely want to handle all privacy matters exactly the same way. However, there are quite a few online Privacy Policy Generators (PPGs) – just do a Google search for “privacy policy generator”.
The user provides answers to a series of questions; based on the user’s answers, the PPG provides recommended text for a Privacy Policy. I have not examined the text that the PPGs produce, so I cannot comment on its appropriateness or legal sufficiency. However, the PPGs’ questions and choices of answers constitute a helpful checklist for thinking about privacy issues.
While I cannot recommend preparing a Privacy Policy on your own, if you must do so, a PPG can increase the likelihood that you will cover the right topics in an appropriate way.
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
September 23rd, 2009
Dana
Megan Meier, the victim
Lori Drew is the woman who, using Myspace in 2006, cyberbullied 13-year-old Megan Meier into committing suicide.
Drew’s actions were, without question, reprehensible. The interesting issue for this post, however, is the U.S. government’s decision to bring criminal charges under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. Section 1030.
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Dana Shultz is a business-savvy lawyer located in Northern California's San Francisco Bay Area (in the East Bay, near Oakland) who has in-depth knowledge of law, business, technology, and the needs of startup and early-stage companies.