E-Commerce Law

#TWiL105 Live Stream Tomorrow

Tomorrow, I'll be appearing live on Episode 105 of This Week in Law.  The show streams at http://live.twit.tv/ from 2:00 p.m. to 3:15 p.m. ET and will be produced as a podcast thereafter.

The show is hosted by Denise Howell and Evan Brown.  (I last appeared on This Week in Law in September (Episode 78).)

This week, we'll be discussing some of these topics (as time permits):

• Amazon's Digital Music Locker;
• The RIAA's Demand for "More Money than Exists in the Entire World";
• Replacing Attorneys with Software;
• A Lawsuit that Could (But Definitely Won't) Destroy Facebook;
• IMs Modifying the Terms of a Written Contract; and
• Emerging Social Media Law Issues

I'll be tweeting during the live stream of the show (keep an eye on hashtags #TWiL and #TWiL105), so please make plans to watch and follow me on Twitter (@JonathanFrieden).

 

E-Commerce Law Briefs: Week of February 21, 2011

Sex.com set a record when it was sold for $13 million last year.

Facebook stalkers can now be automatically notified when a person breaks up with his or her significant other.

Foursquare is closing in on 7 million users.

eBay's venue selection clause is still enforceable.

The next great tech wave is mobile apps.

Each weekend, E-Commerce Law Briefs provides a brief summary and commentary on recent legal news affecting e-commerce businesses.

E-Commerce Law Briefs: Week of February 14, 2011

A 21-year old driver has been sued for striking and killing a pedestrian while updating her Facebook profile. The daughter of the 70-year old victim filed suit last Monday alelging that the driver operated her vehicle without keeping a proper and sufficient focus, drove while using an electronic communication device, and failed to slow down to avoid an accident. The driver claimed she was blinded by the sun when she struck the victim, who had gotten out of his vehicle after a minor traffic accident, and was ticketed for striking a pedestrian in the roadway.  Facebook shows that the driver posted her status update at 7:54 a.m., the exact time that authorities were called about the victim's initial traffic accident.  (As we've explained before, this sort of electronic evidence is becoming more and more important in adjudicating disputes.) 

Amazon is leaving Texas over taxes.

The federal government is investigating Wikileaks founder Julian Assange and others suspected of disclosing thousands of classified documents on the anti-secrecy website and is attempting to obtain personal information from the Twitter accounts of three people linked to the site.  Last Tuesday, defense attorneys asked U.S. Magistrate Judge Theresa Carroll Buchanan, of the United States District Court for the Eastern District of Virginia, to overturn her December ruling ordering Twitter to disclose its clients' data.  

eBay's forum selection clause is still enforceable.

Facebook is worth $67.5 billion.

Each weekend, E-Commerce Law Briefs provides a brief summary and commentary on recent legal news affecting e-commerce businesses.

FAQ: Is an Internet Contract Enforceable?

In our practice, we frequently receive questions about the enforceability of so-called "Internet contracts" - agreements reached between parties over the Internet.  Generally speaking, an analysis of the enforceability of any contract is the same, whether the contract was formed by the parties over the Internet or by the execution of a written document. 

Though the Internet is fairly new, the enforceability of Internet contracts is governed by the well-established legal principles which apply to traditional written contracts.  To form an enforceable contract, two or more parties must mutually assent to the terms of the contract and the contract itself must be supported by some consideration.  Internet contracts generally fall into one of three categories, with each one being treated slightly differently by the courts.

E-Commerce Law Briefs: Week of April 20, 2009

The Wikipedia Foundation has demanded that the artists responsible for Wikipedia Art surrender the domain name wikipediaart.org.  "Last February, [the artists], working with several collaborators, created a Wikipedia article and invited the general public to add to it, following Wikipedia’s standards of credibility and verifiability. The work was intended to comment on the nature of art and Wikipedia. [However, Wikipedia editors shut down the project]  within fifteen hours for being insufficiently 'encyclopaedic.'"  The artists obtained the domain name wikipediaart.org and created a website to document the project which the Foundation seeks to shut down because it uses the "Wikipedia" trademark.

The United States District Court for the Northern District of Texas has applied traditional contract principles to find that Blockbuster Online's website Terms and Conditions are unenforceable.  "The crux of the Plaintiffs’ arguments were that since Blockbuster reserved the right to modify the Terms and Conditions at their “sole discretion” at “any time” to be effective immediately on their site, the contract was thus illusory.  The Court found the contract was illusory because Blockbuster had the power to unilaterally change the contract whenever they wanted to do so. The only 'limit' was the new terms would not be effective until posted online."

"Worldwide visitors to Twitter.com increased 95 percent in the month of March from 9.8 million to 19.1 million."

Google has upgraded a little-used feature that permits users to create profile pages with their name, photo, contact information, and other information.

"In February, a Texas jury awarded Orix Capital Markets, LLC $12.5 million in damages in a defamation case involving statements published on the . . . 'gripe site' Predatorix.com."

"Students have suffered another defeat in their legal fight against the company that runs a plagiarism-detection tool popular among professors.  A federal appeals court last week affirmed a lower court’s decision that the Turnitin service does not violate the copyright of students, even though it stores digital copies of their essays in the database that the company uses to check works for academic dishonesty."  The copyright infringment suit was brought by two Mclean, Virginia high school students after Turnitin was hired by their school to catch cheaters.

E-Commerce Law Briefs is a weekly feature appearing on E-Commerce Law. Each weekend, E-Commerce Law Briefs will provide a brief summary and commentary on recent legal news affecting e-commerce businesses.

E-Commerce Law Briefs: Week of February 23, 2009

"Facebook, angling to turn a recent user rebellion to its own advantage, called upon the users themselves . . .to help formulate what has been portrayed as a kind of "bill of rights" to govern the social-networking giant."

E-Commerce Law Briefs is a weekly feature appearing each Friday afternoon on E-Commerce Law. Each week, E-Commerce Law Briefs will provide a brief summary and commentary on recent legal news affecting e-commerce businesses.

E-Commerce Law Briefs: Week of February 16, 2009

Surgeons recently live-tweeted the removal of a cancerous tumor from a man's kidney.  We use Twitter (follow E-Commerce Law on Twitter here) fairly regularly but don't expect us to be live-tweeting any of our trials or negotiations any time soon.

"Guidance Software Inc. bills itself as the leading provider of technology that helps companies dig up old e-mails and other electronic documents that might be evidence in a lawsuit. Yet when Guidance itself had to face a judge, it was accused of bumbling its internal digital search.  Whether Guidance intentionally hid documents or just couldn't find them is a matter of dispute."

"After three days of pressure from angry users and the threat of a formal legal complaint by a coalition of consumer advocacy groups, [popular social networking site Facebook] reversed changes to its contract with users that had appeared to give it perpetual ownership of their contributions to the service."  Perhaps we should update our Website Terms of Use post to include a section on intellectual property issues.

E-Commerce Law Briefs is a weekly feature appearing each Friday afternoon on E-Commerce Law. Each week, E-Commerce Law Briefs will provide a brief summary and commentary on recent legal news affecting e-commerce businesses.

Copying Another Website's Terms of Use Can Lead to Trouble

Public Knowledge has highlighted a number of instances (most notably, instances involving Twitter and Adobe) in which e-commerce companies have failed to undertake the analysis and thoughtful drafting required to develop customized Terms of Use and, instead, used generalized terms or simply "borrowed" the Terms of Use posted at another company's website.  Unfortunately, it's a trend we've observed for some time. 

Federal Court Upholds YouTube Terms of Use

On April 15, 2008, the United States District Court for the Western District of Washington dismissed a lawsuit filed by a YouTube user in the wrong venue.  In Bowen v. YouTube, Inc., 2008 WL 1757578 (W.D. Wash. 2008), the Court enforced YouTube's Terms of Use which require that all suits arising from YouTube's website be brought in San Mateo County, California.  In support of the ruling, the Court noted that

[while] new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract . . . when a benefit is offered subject to stated conditions and the offeree makes a decision to take the benefit with knowledge of the terms of the offer, the taking constitutes an acceptance of the terms, which accordingly become binding on the offeree.

Id. at *2 (quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004).

This case further demonstrates the importance of including an enforceable choice of law provision in a website's terms of use.

Forum Selection Clause in Website Terms of Use Held Enforceable

In Krause v. Chippas, 2007 WL 4563471 (N.D. Tex. 2007), the United States District Court for the Northern District of Texas has transferred the case in reliance upon a forum selection clause found in the FuturesCom.com Service and Usage Agreement.