Online terms of service restricting competitor access to website were unenforceable

If you are in the habit of reading online terms and conditions, you may have encountered a provision that looks something like this:

You may not use the site to gain competitive intelligence about [Provider] to compete with [Provider] or its affiliates.

A court recently held that a provision containing essentially this language was not enforceable against a competitor accused of accessing and copying website content. The court found the provision to be an overly broad non-compete covenant under applicable state law, and likely against public policy. For this reason (among others), the court denied the plaintiff website owner’s motion for a temporary restraining order against the defendant competitor.

The court observed that the restriction was without any geographic or temporal limit. Nor was the provision saved by the requirement that use of “competitive intelligence” be the subject of restricted use. In this particular case, plaintiff was complaining of defendant’s use of information on the publicly-visible portions of plaintiff’s website. Under Illinois law, in order for a covenant not to compete be enforceable, the covenant must secure some “protectable interest” such as a trade secret. For purposes of denying the motion for a temporary restraining order, the court found that a covenant restricting the use of such widely disseminated, freely available information is likely unenforceable.

TopstepTrader, LLC v. OneUp Trader, LLC, 2017 WL 2798397 (N.D. Ill. June 28, 2017)

Evan_BrownAbout the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Florida court rules that online seller’s terms and conditions were not enforceable

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Beware the browsewrap.

A Florida state appellate court recently held that an online seller’s terms and conditions, appearing in a “browsewrap” agreement linked-to from the bottom of its web pages, were not enforceable.

Plaintiff, an online purchaser of defendant’s dietary supplements, sued defendant seller over liver damage plaintiff allegedly sustained from the products. Defendant filed a motion with the trial court seeking to enforce an arbitration clause in its online terms and conditions. Plaintiff objected to that motion, arguing that he never agreed to the arbitration clause contained in the browsewrap agreement.

The lower court denied defendant’s motion to compel arbitration, finding that the terms of the browsewrap agreement were not incorporated into the sales agreement. Defendant sought review with the Florida appellate court. On appeal, the court affirmed the denial of the motion to compel.

This was a case of first impression in the Florida state courts.

The court observed that in other jurisdictions, browsewrap agreements have generally been enforced only when the hyperlink to the terms and conditions is conspicuous enough on the web page to place a user on inquiry notice of their terms. (Inquiry notice, simply stated, is, as its name suggests, notice sufficient to make the user aware enough of the terms that their natural inclination is to inquire further as to what the particular terms are.)

The court distinguished this case from the case of Hubbert v. Dell Corp., an Illinois case in which the court found a browse-wrap agreement to be enforceable.

Here, unlike in the Hubbert case, the defendant’s website allowed a purchaser to select a product and proceed to checkout without seeing the hyperlink to the terms and conditions. The website user could complete the purchase without scrolling to the bottom of the page where the link to the terms and conditions appeared.

In this situation the court found that the online seller’s website failed to advise the plaintiff that his purchase was subject to the terms and conditions of the sale, and did not put him on the required inquiry notice of the arbitration provision.

Vitacost.com, Inc. v. McCants, — So.3d — 2017 WL 608531 (Fla.Ct.App. Feb. 15, 2017)

Evan_BrownAbout the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Cruz campaign still facing copyright and breach of contract liability over songs used in political ads

Court denies motion to dismiss copyright and breach of contract claims over songs used in YouTube and TV political ads.

Months after Ted Cruz ended his presidential bid, his campaign, and the advertising company hired to create ads for the campaign, still face liability over two songs used in YouTube and television ads. A federal court in Washington state has denied the defendants’ motion to dismiss copyright infringement and breach of contract claims brought against them.

An employee of the Cruz campaign’s advertising company allegedly downloaded two songs from Audiosocket, and then used those songs in two separate campaign ads. Audiosocket and the copyright holders sued for infringement and breach of the licensing agreements under which the songs were provided.

The court rejected the defendants’ arguments. It held that the plaintiffs had adequately pled the existence of their copyright registrations, and that the claims for breach of the licensing agreement were not preempted by the Copyright Act. Because the licensing agreement expressly prohibited the songs to be used for political purposes, the breach of contract claims were not “equivalent” to a copyright infringement claim, and therefore not subject to preemption under 17 USC 301.

The case is a reminder of the risks that companies and organizations face when hiring outside vendors to procure and create content. The hiring party should seek, at minimum, to ensure that the vendor has obtained the appropriate rights in the content it will integrate into the deliverables provided under the arrangement. And the vendor should utilize appropriate internal protocols and form documents to help ensure that the content it provides to its customer does not infringe. That kind of diligence will help avoid unpleasant situations between vendor and customer that arise when third parties claim against both of them that intellectual property rights have been infringed.

Leopona, Inc. v. Cruz For President, 2016 WL 3670596 (W.D. Washington, July 11, 2016)

Court holds browsewrap agreement not enforceable

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Plaintiff filed a consumer fraud class action lawsuit against defendant, the operator of an ecommerce website. Defendant moved to have the case heard by arbitration, arguing that the arbitration provision in its website’s terms of use required the dispute to be arbitrated instead of heard in court. The terms of use were in the form of a “browsewrap” agreement — viewable by a hyperlink displayed at the bottom of each page of defendant’s website.

The court denied the motion, finding that the hyperlink to the terms of use (containing the arbitration provision) was too inconspicuous to put a reasonably prudent internet consumer on inquiry notice. Since the agreement was not enforceable, plaintiffs were not bound by the arbitration provision. Defendant sought review with the California Court of Appeal. On appeal, the court affirmed the lower court.

It observed that for a browsewrap agreement to be enforceable, a court must infer that the end user assented to its terms. This may be more difficult to show than in situations involving “clickwrap” agreements, which require the user to affirmatively do something, such as check a box, to indicate his or her assent to the terms of use.

In this case, the court held that although an especially observant internet consumer could spot the defendant’s terms of use hyperlinks on some checkout flow pages without scrolling, that quality alone was not all that was required to establish the existence of an enforceable browsewrap agreement. Rather, as the Second Circuit observed in Specht v. Netscape, 306 F.3d 17 (2d Cir.2002), “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility.”

Here, the defendant’s terms of use hyperlinks — their placement, color, size and other qualities relative to defendant’s website’s overall design — were simply too inconspicuous to meet that standard.

Long v. Provide Commerce, Inc., — Cal.Rptr.3d —, 2016 WL 1056555 (Cal Ct. App., March 17, 2016)

About the Author: Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

Photo courtesy Flickr user Patrick Finnegan under this Creative Commons license.

Want your online agreements to be enforceable? Keep good transaction data.

Chicago internet attorney Evan Brown

A recent court decision underscores the importance of building online e-commerce platforms with the ability to reliably gather information about transactions. The case also says some troubling things about open source.

Plaintiff loaned money in exchange for the borrower assigning its accounts receivable to plaintiff. As part of plaintiff’s services, it provided a platform for its borrower to generate and send invoices to the borrower’s customers. The borrower began generating fake invoices, and one of its customers — the defendant in this case — refused to pay. There was a dispute over whether defendant had accepted or rejected the invoices using plaintiff’s invoice platform.

After a trial, the judge ruled in favor of defendant. The court found that the digital data showing whether defendant had accepted or rejected the invoices was unreliable. The court found credible the testimony of one of defendant’s employees that he never clicked “I agree” on the fraudulent invoices. And there was no good database evidence that he had.

Plaintiff sought review with the Court of Appeal of California. On appeal, the court affirmed, agreeing that the data was unreliable, and further commenting on the problematic use of open source software in plaintiff’s online invoice platform.

The court of appeal found that substantial evidence supported the lower court’s findings. Specifically, it agreed with the lower court’s findings that the defendant’s employee never clicked on the “I agree” button to accept the fraudulent invoices. The court also credited the lower court’s finding that the data was unreliable in part because plaintiff’s website was developed from open source code, and that the developer made untested changes to the software on a weekly basis.

The treatment of the open source aspect is perhaps unfortunate. One unfamiliar with open source would read the court’s opinion as an indictment against open source software’s fundamental reliability:

Open source code is problematic because anonymous people on the internet design it, and “holes” are not fixed by vendor updates. Notifications that there are issues with the code may not go out.

The lack of reliability of the data in this case was not due to the fundamental nature of open source. (We know that open source software, e.g., Linux, powers essential core features of the modern internet.) So it is unfortunate that future litigants may look to this case to argue against vendors who use open source solutions. Fortunately, the case is not citable as precendent (many California Court of Appeal cases are not citable). But the court’s negative treatment of the nature of open source is a troubling example of how a judge may be swayed by a technological red herring.

21st Capital Corp. v. Onodi Tooling & Engineering Co., 2015 WL 5943097 (Not officially published, California Court of Appeal, October 13, 2015)

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

Photo by Flickr user bookfinch under this Creative Commons license.

Court provides guidance on how to effectively communicate online terms of service

Are online terms of service provided via hyperlink in an email binding on the recipient of that email? The Second Circuit recently addressed that question, and the decision gives guidance on best practices for online providers.

Plaintiff booked a trip to the Galapagos Islands using defendant’s website. When she purchased her ticket, she got a booking information email, a confirmation invoice and a service voucher. (It is not clear how plaintiff got the confirmation invoice and the service voucher – the court’s opinion says they were sent as emails, but the PACER record does not show them as emails. In any event, plaintiff did not dispute that she received all three documents, nor did she dispute all three documents contained a hyperlink to defendant’s “terms and conditions” which were available online.)

One evening during the trip, a tour guide allegedly assaulted plaintiff. She sued defendant for negligently hiring and training that tour guide. Defendant moved to dismiss, pointing to language in the online terms and conditions that called for disputes to be heard in Canadian court. The district court dismissed the action, and plaintiff sought review with the Second Circuit. On appeal, the court affirmed. It held that defendant had reasonably communicated the forum selection clause to plaintiff by using hyperlinks and the appropriate language in the terms and conditions.

Each of the documents contained an underlined hyperlink, and accompanying language advising plaintiff to click on the hyperlink. The booking information email contained a standalone provision with the heading “TERMS AND CONDITIONS”. This section stated that “[a]ll . . . passengers must read, understand and agree to the following terms and conditions.” The hyperlink immediately followed. Both the confirmation invoice and the voucher contained a link to the terms and conditions, preceded by “[c]onfirmation of your reservation means that you have already read, agreed to and understood the terms and conditions. . . .”

The actual structure and language of the terms and conditions also served to reasonably communicate the forum selection clause. The second paragraph stated that the terms and conditions “affect your rights and designate the governing law and forum for the resolution of any and all disputes.” Later in the terms and conditions, a standalone section titled “APPLICABLE LAW” provided that all matters arising from the agreement were subject to Ontario and Canadian law and the exclusive jurisdiction of the Ontario and Canadian courts.

The decision validates the notion that an e-commerce provider can rely on establishing valid and binding contracts with its customers without having to actually transmit a copy of the terms and conditions that would apply to the transaction. Though the facts of this case dealt with email, there is no substantive reason why the best practices revealed by the court’s decision would not apply to providers of mobile apps and other online platforms.

Starkey v. G Adventures, Inc., — F.3d —, 2015 WL 4664237 (2nd Cir. August 7, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

Forum selection clause in browsewrap agreement did not bind parties in bitcoin fraud case

We all know that clickwrap agreements are preferable to browsewrap agreements, assuming, of course, the objective is to establish binding contracts between participants in online transactions. Nonetheless, some online platforms still (try to) rely on browsewrap agreements to establish terms of service. That avoidance of best practices gives us situations like the recent case of Hussein v. Coinabul, LLC, in which a federal court in Illinois refused to enforce a forum selection clause in a “bitcoin to gold marketplace” browsewrap agreement.

Plaintiff alleged that he sent about $175,000 worth of bitcoins to defendants in June 2013, expecting to get gold in return. (Plaintiff alleges he transferred 1,644.54 BTC. The average exchange value in June 2013 was $107.82/BTC. You can get historical bitcoin price data here: http://www.coindesk.com/price) When the gold never arrived, plaintiff sued for fraud.

Defendants moved to dismiss, citing a forum selection clause contained in a browsewrap agreement found on its website. That purported agreement required all disputes to be heard in the state courts of Wyoming, and for Wyoming law to apply. The court denied the motion to dismiss, finding that the browsewrap agreement afforded plaintiff neither actual nor constructive knowledge of its terms and conditions.

The court observed that the hyperlink that directed users to defendants’ Terms of Service was listed among ten other hyperlinks at the bottom of each page. (See this Wayback Machine capture of the website from June 2013).

As for lack of actual knowledge, the court credited plaintiff’s allegations that he did not review or even know of defendants’ Terms of Service when he entered the bitcoin transaction. And there was no evidence to the contrary in the record.

And as for lack of constructive knowledge, the court found that the hyperlink, “buried at the bottom of the webpage – [was] without some additional act of notification, insufficient for the purpose of providing reasonable notice.”

Hussein v. Coinabul, LLC, No. 14-5735, 2014 WL 7261240 (N.D. Ill. December 19, 2014)

Limitation of liability clause in software license agreement did not excuse customer from paying fees

Customer did not like how software it had bought performed, so it stopped paying. Vendor sued for breach of contract, and customer argued that the agreement capped its liability at $5,000. Both parties moved for summary judgment on what the following language from the agreement meant:

NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE TOTAL DOLLAR LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO U.S. $5,000.

Customer argued that the sentence meant what it said, namely, that customer would not be liable for anything over $5,000. But the court read otherwise, holding that construe the language as excusing customer’s payment of fees would render those provisions calling for fees (which were much more that $5,000) meaningless.

The court observed that when parties use the clause “notwithstanding anything to the contrary contained herein” in a paragraph of their contract, they contemplate the possibility that other parts of their contract may conflict with that paragraph, and they agree that the paragraph must be given effect regardless of any contrary provisions of the contract.

In this situation, the $5,000 limitation language was the last sentence of a much longer provision dealing with limitations of liability in the event the software failed to function properly. The court held that the rule about “notwithstanding anything to the contrary” applies if there is an irreconcilable difference between the paragraph in which that statement is contained and the rest of the agreement.

There was no such irreconcilable difference here. On the contrary, reading in such difference would have rendered the other extensive provisions dealing with payment of goods and services meaningless, which would have violated a key canon of construction.

IHR Sec., LLC v. Innovative Business Software, Inc., — S.W.3d —, 2014 WL 1057306 (Tex.App. El Paso March 19, 2014)

Evan Brown is an attorney in Chicago, advising clients on matters dealing with software licensing, technology, the internet and new media.

Related:

In software dispute, court enforces forum selection clause and transfers case from California to Michigan

Though parties often think of forum selection clauses as throwaway “boilerplate” language, a recent case demonstrates the influence such a clause can have on where litigation takes place.

Plaintiff sued defendant in California for fraud and other claims relating to the alleged defective performance of electronic medical records software. Defendant moved to transfer the matter to federal court in Michigan, based on a forum selection clause in the agreement that provided, in relevant part, that “[a]ny and all litigation arising from or relating to this Agreement will be filed and prosecuted before any court of competent subject matter jurisdiction in the State of Michigan.” Plaintiff objected to the motion, arguing that enforcement would violate California public policy in a number of ways. The court rejected plaintiff’s arguments and granted the motion to transfer.

Plaintiff argued that transfer would go against California’s public policy against unfair business practices, and would also be against the policy of incentivizing medical providers to adopt electronic medical records systems. The court rejected these arguments because plaintiff’s motion dealt with venue, i.e., where the lawsuit would occur, not which substantive law would apply. Given that the potential existed for the federal court in Michigan to consider whether California law should apply, transferring the case would not cut against public policy.

The court further rejected plaintiff’s argument that the forum selection clause was unconscionable, given that plaintiff did not dispute that she read the clause, and was a sophisticated party. Moreover, citing to language of the Supreme Court on the issue, the court refused to consider arguments about the parties’ private interests. “When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation.”

East Bay Women’s Health, Inc. v. gloStream, Inc., 2014 WL 1618382 (N.D.Cal. April 21, 2014)

Evan Brown is an attorney in Chicago, advising clients on matters dealing with technology, the internet and new media. Follow him on Twitter @internetcases

Related:

[This is a cross post from the InfoLawGroup blog.]

Daughter’s Facebook post costs dad $80,000

A recent case illustrates why (1) it is important for parties to abide by the confidentiality provisions of settlement agreements, and (2) people who learn confidential information should keep their social media mouths shut.

Plaintiff sued his former employer (a private school) for age discrimination and retaliation. The parties later settled the case and entered an agreement containing the following provision:

13. Confidentiality … [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement … A breach … will result in disgorgement of the Plaintiffs portion of the settlement Payments.

After the parties signed the settlement agreement, plaintiff’s college-age daughter posted this on Facebook:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

facepalmDefendant school district refused to pay a portion of the settlement payments ($80,000), claiming plaintiff’s disclosure of the settlement to his daughter violated the confidentiality provision. Plaintiff asked the trial court to enforce the settlement agreement, which it did. Defendant sought review with the Court of Appeal of Florida. On appeal, the court agreed with the school and reversed.

The court found that “before the ink was dry on the [settlement] agreement, and notwithstanding the clear language of section 13 mandating confidentiality, [plaintiff] violated the agreement by doing exactly what he had promised not to do.” And his daughter “then did precisely what the confidentiality agreement was designed to prevent, advertising . . . that plaintiff had been successful in his age discrimination and retaliation case against the school.”

Gulliver Schools, Inc. v. Snay, — So.3d —, 2014 WL 769030 (Fla.App. 3 Dist. Feb 26, 2014)

Photo credit Flickr user haikus under this Creative Common license.

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