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Ruski -> RE: "Awaiting approval" (12/24/2007 1:13:11 AM)
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“Awaiting Approval” Thread TOS TOS? Guildlines? Rules? Fairness? (Your respective demonstrative education in the cyber law (lesson 1) is here….) Terms of Service Clauses Struck Down as being Unfair: http://www.lawfont.com/2007/06/10/second-life-clickwrap-agreement-unenforceable/ http://secondlife.reuters.com/stories/2007/05/31/judge-rules-against-one-sided-tos-in-bragg-lawsuit/ http://www.ipblog.ca/?m=200710 Comb v. PayPal, Inc., 218 F. Supp. 2d 1165 (N.D. Cal. Aug.30, 2002) (rejecting a motion to compel arbitration because the user agreement was unconscionable[UNFAIR TERMS!]).). DeFontes v. Dell Computers Corp., 2004 R.I. Super. LEXIS 32,52 U.C.C. Rep. Serv. 2d 823 (Del. Super. Jan. 29, 2004) (rejecting Dell’s browse-wrap license in accordance with Specht; rejecting Dell’s shrink-wrap for lack of “sufficient notice of the method to reject”) Dyer v. Northwest Airlines, 334 F. Supp. 2d 1196 (D. N.D. September 8, 2004) (rejected Plaintiff’s contract claim, which was based on Northwest’s privacy policy posted on their Internet website). Ting v. AT&T, 182 F. Supp. 902 (N.D. Cal. Jan. 15, 2002) (striking down an arbitration clause in a service agreement as unconscionable [UNFAIR TERMS!]). Contrary to popular belief use does not necessarily constitute an agreement: Specht vs. Netscape Communications Corp (non-mandatory click-through is not a binding contract): “Principally, we are asked to determine whether plaintiffs-appellees ("plaintiffs"), by acting upon defendants' invitation to download free software made available on defendants' webpage, agreed to be bound by the software's license terms (which included the arbitration clause at issue), even though plaintiffs could not have learned of the existence of those terms unless, prior to executing the download, they had scrolled down the webpage to a screen located below the download button. We agree with the district court that a reasonably prudent Internet user in circumstances such as these would not have known or learned of the existence of the license terms before responding to defendants' invitation to download the free software, and that defendants therefore did not provide reasonable notice of the license terms. In consequence, plaintiffs' bare act of downloading the software did not unambiguously manifest assent to the arbitration provision contained in the license terms.” Ticketmaster Corp., et al. v. Tickets.Com, Inc. (contract terms linked to from the bottom of the page are not necessarily binding on people who access the page): “Many web sites make you click on “agree” to the terms and conditions before going on, but Ticketmaster does not. Further, the terms and conditions are set forth so that the customer needs to scroll down the home page to find and read them. Many customers instead are likely to proceed to the event page of interest rather than reading the “small print.” It cannot be said that merely putting the terms and conditions in this fashion necessarily creates a contract with anyone using the web site[OR THEM “GUILDLINE-RULES EVERYONE EVER SO WANTS TO THROW UP”]. The motion is granted with leave to amend in case there are facts showing Tickets’ knowledge of them plus facts showing implied agreement to them.” Waters v. Earthlink, Inc., 91 Fed. Appx. 697 (1st Cir. Oct. 31, 2003) (affirming district court’s refusal to enforce an user agreement that was merely “linked” on an arbitrary webpage). KINDA LIKE THEM GUIDELINES… Williams v. America Online, 2001 WL 135825 (Mass. Super. Ct. Feb. 8, 2001) (refusing to enforce AOL’s forum selection clause in its user agreement because it was possible to download the software without agreeing to it) America Online, Inc. v. Pasieka (Fla. Dist. Ct. App. Jan.29, 2004) (refusing to uphold AOL’s forum selection clause for consumer protection claims). I THINK THIS ONE IS IMPORTANT… This concludes our cyber law lesson for now. I am sure those people who are reading this can use www.google.com to find any of the above as I have (because the above did come from google)…. Lesson #2 Consumer Law Lesson #3 Free Speech Lesson #4 What does it all mean? DUuH…
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