Blogging, Contracts, Licensing and Privacy - Intellectual Property Pulse

X Corp. v. Bright Data is the Decision We’ve Been Waiting For (Guest Blog Post)

Technology & Marketing Law Blog

MAY 17, 2024

If the issue lies in loopholes within the ToS, the solution seems straightforward: draft tighter contracts and perhaps incorporate a browsewrap on your platforms to catch those who don’t hold accounts. X’s breach of contract cases against CCDH for violating its ToS by scraping also didn’t fare well. In 2022, in ML Genius v.

Blogging

Blogging Contracts Fair Use Copyright Law

Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance

Technology & Marketing Law Blog

APRIL 8, 2023

California passed the California Age-Appropriate Design Code (AADC) nominally to protect children’s privacy, but at the same time, the AADC requires businesses to do an age “assurance” of all their users, children and adults alike. Doing age assurance/age verification raises substantial privacy risks.

Privacy

Privacy Law Contracts Designs

Instacart’s Privacy Policy Protects Stripe from Consumer Privacy Claims–Silver v. Stripe

Technology & Marketing Law Blog

JULY 31, 2021

Instacart purports to bind consumers to its privacy policy via this screen: (Sorry for the poor image resolution. The court says Instacart creates an enforceable sign-in-wrap (ugh): The Court finds Instacart’s privacy policy conspicuous and obvious for several reasons. Airbnb , the green font for the privacy policy link is NBD.

Privacy

Privacy Technology Blogging Marketing

Should Copyright Preemption Moot Anti-Scraping TOS Terms? (Guest Blog Post)

Technology & Marketing Law Blog

DECEMBER 13, 2023

by guest blogger Kieran McCarthy Many characterize the law of copyright preemption of contracts as a circuit split. It’s not that half of federal judges have adopted one clear stance on copyright preemption of contracts and the other half have adopted another clear stance. But fair use isn’t a defense to a breach of contract claim.

Blogging

Blogging Copyright Contracts Cease and Desist

Contractual Control over Information Goods after ML Genius v. Google (Guest Blog Post)

Technology & Marketing Law Blog

JULY 18, 2023

Moritz College of Law The copyright – contract tension Stewart Brand famously said that information wants to be free. The flexibility of contracts makes them a prime candidate for restricting uses that copyright law leaves unprohibited. That still leaves a rather broad space for contract law to effectively limit the use of information.

Blogging

Blogging Contracts Copyright Law Copyright

Poorly Executed “Sign-in-Wrap” Contract Formation Process Fails–Berman v. Freedom Financial

Technology & Marketing Law Blog

APRIL 16, 2022

The court confirms that to ensure enforceability, consumers should (1) check the box and (2) be advised that checking the box will indicate assent to contract terms. These basic principles “apply with equal force to contracts formed online.” See blog posts on those rulings here and here.). Freedom Financial Network, LLC.

Contracts

Contracts Designs Design Law

FitBit’s Contract Formation Upheld Despite Different Ways of Linking to the TOS—Houtchens v. Google (with Bonus Contracts Quick Links)

Technology & Marketing Law Blog

DECEMBER 23, 2022

Still, it seems troublesome because it ignores that some contract was formed at point of purchase, and those terms should be relevant to governing the device and possibly whether or not the service TOS is an amendment, a conflicting contract, or something else. BONUS: Additional contracts links from the past six months.

Contracts

Contracts Privacy Registration Government

California Appellate Court Rejects Poorly Executed “Sign-In Wrap”–Sellers v. JustAnswer (Guest Blog Post)

Technology & Marketing Law Blog

FEBRUARY 13, 2022

Contracts are a state-law issue. And online contracts, even though they exist in the friction-less, boundary-less world of the internet, are also generally governed by state-law principles. There are relatively few state-court cases with outsized influence in the law of online contracts. By guest blogger Kieran McCarthy.

Blogging

Blogging Contracts Law Privacy

Chegg Is Likely to Prevail on Its Anti-Scraping CFAA Claim…But Doesn’t Get an Injunction–Chegg v. Doe (Guest Blog Post)

Technology & Marketing Law Blog

JULY 26, 2023

Breach of Contract As is common with scraping cases in 2023, just because the scraper prevails on the CFAA claim doesn’t mean the scraper is going to prevail. When doing so, defendant had to agree to the Terms and Privacy Policy. Those terms and privacy policies were hyperlinked. The terms prohibited scraping.

Cease and Desist

Cease and Desist Blogging Contracts Privacy

Hello, You’ve Been Referred Here Because You’re Wrong About Web Scraping Laws (Guest Blog Post, Part 2 of 2)

Technology & Marketing Law Blog

DECEMBER 9, 2022

Even if Google’s conduct could be interpreted as a technical violation of many websites’ notoriously overbroad terms of service, their conduct doesn’t meet the criteria for most online breach of contract disputes. Trademark, copyright, trespass to chattels, the law of online contracts—none of this stuff is novel.

Blogging

Blogging Law Contracts Cease and Desist

The Digital Age of Journalism: My Placement at “The Globe and Mail”

IPilogue

JANUARY 11, 2023

There are significant overlaps and considerations to think of with the roll-out of a privacy policy, consumer protection laws, and a range of different agreements including those related to advertising, purchase and sale, events, and content production freelancer rights.

Journalism

Journalism Privacy Contracts IP

Court Says Twitter Misused Litigation to Punish Defendants for Their Speech–X v. CCDH

Technology & Marketing Law Blog

MARCH 25, 2024

In a highly technical ruling, the court rejects Twitter’s CFAA claim on a motion to dismiss and rejects Twitter’s other claims, including breach of contract, on an anti-SLAPP motion to strike. RIPTwitter. * * * Most readers should stop reading the blog post here. Breach of Contract Twitter’s TOS bans scraping.

Litigation

Litigation Contracts Advertising Advertising

Lawsuit Still Goes to Arbitration, Even Though Amazon Has Since Removed Its Arbitration Clause–Nicosia v. Amazon

Technology & Marketing Law Blog

OCTOBER 29, 2021

That lawsuit has already resulted in two Second Circuit opinions (and three blog posts). Anarchy Has Ensued In Courts’ Handling of Online Contract Formation (Round Up Post). Qwest Gets Mixed Rulings on Contract Arbitration Issue—Grosvenor v. Defective Call-to-Action Dooms Online Contract Formation–Sgouros v. Trilegiant.

Contracts

Contracts Privacy Blogging Litigation

Ownership, Licensing, and Fair Use of Copyright for Webinars

Biswajit Sarkar Copyright Blog

JUNE 23, 2022

Although privacy invasion has been the main topic of discussion in this virtual context, there is another issue at hand: copyright infringement. The post Ownership, Licensing, and Fair Use of Copyright for Webinars appeared first on Biswajit Sarkar Blog. written in advance).

Fair Use

Fair Use Ownership Copyright Licensing

Facebook Faces Contributory Trademark Liability for Marketplace Listings–Car-Freshner v. Meta

Technology & Marketing Law Blog

NOVEMBER 11, 2023

The rightsowner has trademark registrations for the tree-shaped outline: Armed with protectable rights in tree outlines, Car-Freshner has turned into a serial plaintiff, though this is my first time blogging them in-depth. Contract Formation and Amendment The news wasn’t just bad for Facebook on the trademark front.

Trademark

Trademark Contracts Blogging Fair Use

My “Summer” 2022 Activities

Technology & Marketing Law Blog

AUGUST 29, 2022

I posted a chapter from the book: Online Contracts. Comments to the CPPA’s Proposed Regulations Pursuant to the Consumer Privacy Rights Act of 2020, Aug. Comments on the California Consumer Privacy Rights Act (CPRA) Rulemaking , May 2022. Blog Posts. I’ve blogged 100+ posts so far this year. Attorney General.

Editing

Editing Social Media Blogging Advertising

Two More Cases Compel Arbitration for Dubious Online Contracts (Guest Blog Post)

Technology & Marketing Law Blog

JANUARY 23, 2024

by guest blogger Kieran McCarthy The intersection of the Federal Arbitration Act and the law of online contracts has become utterly corrosive to our legal system. The problem with the FAA and online contracts, of course, is that no one is agreeing to arbitrate anything. Consumer Contracts (Tent. Many people think this is true.

Contracts

Contracts Blogging Advertising Advertising

Another Court Finds an “Enforceable Browsewrap.” MAKE IT STOP–Hawkins v. CMG

Technology & Marketing Law Blog

FEBRUARY 17, 2024

This is a Video Privacy Protection Act (VPPA) case against a media website, so you have good reason to wonder about the legitimacy and sincerity of the case. CMG appeared first on Technology & Marketing Law Blog. The named plaintiff created a WSBTV account by opting to log in using Facebook. CMG Media Corp. 2024 WL 559591 (N.D.

Privacy

Privacy Litigation Marketing Marketing

Can Facebook Stop Data Snarfers?–Meta v. BrandTotal

Technology & Marketing Law Blog

JUNE 9, 2022

Any legal policy that encourages data snarfing must simultaneously contend with the potentially anti-competitive and anti-social effects of preventing legitimate players from snarfing, along with the potentially massive privacy and security risks that data snarfers create. ” Oof. BrandTotal sought summary judgment that Section 3.2.3

Contracts

Contracts Privacy Social Media Advertising

If TOS Formation Fails, Bad Legal Outcomes Are Likely to Follow–Doe v. Roblox

Technology & Marketing Law Blog

MAY 17, 2022

Contract Formation. Reminder: a second click is best practice because it reduces risk of contract formation failure, like what happens here). The court doesn’t specify what contract terms gap-fill in the TOS’s absence, but those default rules won’t be as favorable to Roblox as their TOS. Cite to IC v.

Contracts

Contracts Publishing Licensing Editing

An E-Commerce Site Tried to Form Its TOS Three Different Ways. None of Them Worked–Chabolla v. ClassPass

Technology & Marketing Law Blog

JULY 19, 2023

Whereas this final page bolds certain important information about the trial membership, for instance, that prospective members can “Cancel anytime” and that they will be provided “1 month (and 45 credits) to book any classes [they] want,” no such bolding is applied to the text notice linking to the Terms and Privacy Policy. ” OK boomer.

Privacy

Privacy Contracts Marketing Marketing

Once Again, LinkedIn Can’t Use CFAA To Stop Unwanted Scraping–hiQ v. LinkedIn

Technology & Marketing Law Blog

MAY 2, 2022

Our blog post on the original Ninth Circuit ruling: “ Ninth Circuit Says LinkedIn Wrongly Blocked HiQ’s Scraping Efforts ”.). The court remains skeptical of LinkedIn’s privacy-based arguments: LinkedIn has no protected property interest in the data contributed by its users, as the users retain ownership over their profiles.

Cease and Desist

Cease and Desist Contracts Privacy Business

If a Lawyer Accepts a TOS While Investigating a Claim, Does It Bind the Client to Arbitration?

Technology & Marketing Law Blog

MARCH 23, 2022

Related posts : “ Amazon Can’t Force Arbitration of Minors’ Privacy Claims Based on Alexa Recordings–BF v. Anarchy Has Ensued In Courts’ Handling of Online Contract Formation (Round Up Post)”. appeared first on Technology & Marketing Law Blog. PeopleConnect, Inc. , 21-16040 (9th Cir. March 18, 2022). Facebook ”. Facebook.”.

Privacy

Privacy Contracts Personality Rights Litigation

How Can AI Models Legally Obtain Training Data?–Doe 1 v. GitHub (Guest Blog Post)

Technology & Marketing Law Blog

JUNE 17, 2023

Also, ignoring copyright licenses is at least arguably copyright infringement, and your fair use claim probably won’t get you out of the lawsuit at the motion to dismiss stage. Plaintiffs have not met their burden to allege facts demonstrating an injury-in-fact sufficient to confer standing for their privacy-based claims.

Blogging

Blogging Licensing Privacy Copyright Notice

Data Breaches: Regulatory and Contractual Notification Obligations

LexBlog IP

JANUARY 7, 2022

This blog will discuss what constitutes a personal data breach, organizational obligations for notifying customers, and how organizations can limit contractual liability for personal data breaches. Data privacy concerns for businesses are on the rise, and organizations need to be prepared for the growing threat and response.

Privacy

Privacy Intellectual Property Contracts Business

Section 230 Protect Apple’s App Store from Claims Over Cryptocurrency Theft–Diep v. Apple

Technology & Marketing Law Blog

SEPTEMBER 9, 2022

“plaintiffs’ computer fraud and privacy claims are based on Apple’s reproduction of an app, Toast Plus, intended for public consumption, via the App Store. ” This is a highly defense-favorable reading of the contract provision. Apple appeared first on Technology & Marketing Law Blog. ” Oops.

False Advertising

False Advertising Privacy Publishing Advertising

Boat Rental Marketplace Defeats Lawsuit Over Offline Boating Accident–In re Chaves

Technology & Marketing Law Blog

FEBRUARY 14, 2024

Thus, the Terms of Use Agreement is a proper clickwrap contract, and the undisputed facts establish that Lindsey Partridge assented to its terms Case Citation : In re Chaves, 2024 U.S. .'” Publisher/Speaker Claim. ” The three hyperlinks were in a blue font that stood out from the other grey font on the page. LEXIS 23688 (S.D.

Contracts

Contracts Advertising Advertising Privacy

Shielding Innovation: Understanding Copyright Protection for App Developers and Their Software

Intepat

JUNE 15, 2023

However, this flourishing industry brings forth a multitude of legal challenges, encompassing privacy concerns and intellectual property protection. Hence, the purpose of this blog is to delve into the significance of copyright protection, the limits of protection and the remedies against infringement. What is copyright protection?

Copyright

Copyright Intellectual Property Ownership Intellectual Property Law

Courts Still Have No Clue How to Determine Who Owns Social Media Accounts–JLM v. Gutman

Technology & Marketing Law Blog

JANUARY 24, 2024

The last time we blogged this case , the district court had sided with JLM, initially restricting Gutman’s use of the social media accounts and then awarding control over the accounts to JLM. Johnson The Spectacular Failure of Employee Social Media Privacy Laws Do Employers Own LinkedIn Groups Created By Employees?–CDM

Social Media

Social Media Ownership Designs Design

Another Example of How “Notice and Explanations” Requirements are a Liability Trap–Shared v. Facebook

Technology & Marketing Law Blog

SEPTEMBER 25, 2022

Shared sued Facebook for: Shared avers that Meta committed conversion (Claim 1), breach of contract (Claim 3), and breach of the implied covenant of good faith and fair dealing (Claim 4) in suspending access to Shared’s Facebook pages, contrary to the Facebook Terms of Service.

Contracts

Contracts Social Media Advertising Advertising

Growth of Virtual Youtubers and IP Complications

IIPRD

JANUARY 29, 2023

The issues pertaining to the rights of VTubers encompass rights to the design of the character, the privacy of the individual, licensing and taking inspiration from an existing character. However, the conversation being considered as a contract between them was unclear regarding the IP rights. 4] Andrew L. 6] Stuart D.

IP

IP Artwork Contracts Intellectual Property

Departing Employees Rename Their Former Employers’ Facebook Account. That May Be a Problem–La Baguette v. Tito & Tita

Technology & Marketing Law Blog

MARCH 10, 2022

Breach of Contract : Plaintiffs only alleged a contract claim, based on breach of a non-compete, against the one defendant who had signed the non-compete. It’s helpful to compare and contrast this case with a pair of cases I blogged about last year. Maryland enacted a social media privacy law in 2021.

Social Media

Social Media Contracts Ownership Business

My Testimony to the Colombian Constitutional Court Regarding Online Account Terminations and Content Removals

Technology & Marketing Law Blog

NOVEMBER 15, 2022

I’m a professor at Santa Clara University School of Law, located in California’s Silicon Valley, where I hold the titles of Associate Dean for Research, Co-Director of the High Tech Law Institute, and Supervisor of the Privacy Law Certificate. I started practicing Internet Law in 1994 and first started teaching Internet Law in 1996.

Publishing

Publishing Government Contracts Law

TOS Supports Injunction Against Web Scraping–Southwest Airlines v. Kiwi

Technology & Marketing Law Blog

OCTOBER 11, 2021

Southwest asserts claims under the CFAA, the Texas computer crime statute, breach of contract, and trademark. Southwest relied on its breach of contract claim when requesting an injunction. Kiwi appeared first on Technology & Marketing Law Blog. Ninth Circuit Says LinkedIn Wrongly Blocked HiQ’s Scraping Efforts.

Cease and Desist

Cease and Desist Contracts Trademark Blogging

The Legal Boundary of Data Scraping in Light of Van Buren v. United States

JIPEL Copyright Blog

DECEMBER 1, 2021

This blog will delve into the reasoning of Van Buren and predict the final decision of HiQ v. Some circuits have held that a violation of policies and contracts such as terms of use and confidentiality agreements is enough to establish liability under the CFAA, while others tend to interpret it narrowly. LinkedIn , 938 F.3d

Contracts

Contracts Licensing Copying Confidentiality

Print-on-Demand Services Face More Legal Woes–Canvasfish v. Pixels

Technology & Marketing Law Blog

MARCH 5, 2024

These defense-favorable outcomes may work in the short term; but they leave open the potential liability of the contracting vendors (which may drive them out of the industry, leaving the marketing agent with no one to outsource to) and as well as the marketing agent’s possible secondary liability exposure for the vendors’ activities.

Artwork

Artwork Trademark Publishing Marketing

More Chaos in the Law of Online Contract Formation

Technology & Marketing Law Blog

AUGUST 11, 2023

Another 3k+ word post about the jurisprudential chaos in online contract formation law. Ticketmaster, a 9th Circuit memo opinion from 2020 that I did not blog. But ultimately, the onus is on Disney to create a contract formation process so conspicuous that a court can’t reach decisions like this.

Contracts

Contracts Law Reporting Blogging

Taking the Mona Lisa Effect from Illusion to Reality: Enhancing the Museum Experience with Augmented and Virtual Reality

JIPEL Copyright Blog

MARCH 9, 2022

That said, for risk-averse museums who may (understandably) wish not to serve as a litigation guinea pig, obtaining authorization from the appropriate rights owners through licenses and contracts may be the preferred approach. The legal concerns aside, the use of AR and VR in museums arguably benefits the public.

Moral Rights

Moral Rights Fair Use Art Social Media

What is Blockchain Technology and has it been Patented?

Biswajit Sarkar Copyright Blog

MAY 7, 2021

In the world of IP, blockchain technologies offer real-time possibilities for IP protection, evidence and registration at either the registry stage or in the court when it comes to questions of data security and privacy concerns – a hot topic of recent times. appeared first on Biswajit Sarkar Blog.

Technology

Technology Patent IP Invention

What is Blockchain Technology and has it been Patented?

Biswajit Sarkar Copyright Blog

MAY 7, 2021

In the world of IP, blockchain technologies offer real-time possibilities for IP protection, evidence and registration at either the registry stage or in the court when it comes to questions of data security and privacy concerns – a hot topic of recent times. appeared first on Biswajit Sarkar Blog.

Technology

Technology Patent IP Invention

What is Blockchain Technology and has it been Patented?

Biswajit Sarkar Copyright Blog

MAY 7, 2021

In the world of IP, blockchain technologies offer real-time possibilities for IP protection, evidence and registration at either the registry stage or in the court when it comes to questions of data security and privacy concerns – a hot topic of recent times. appeared first on Biswajit Sarkar Blog.

Technology

Technology Patent IP Invention

Lawyer’s Agreement to Online Terms if Investigating a Claim May Bind a Client

Technology & Marketing Law Blog

AUGUST 7, 2022

I also blogged a similar case from the Northern District of California. The post Lawyer’s Agreement to Online Terms if Investigating a Claim May Bind a Client appeared first on Technology & Marketing Law Blog. Perhaps sending a letter repudiating the agreement after the lawsuit is filed or immediately prior to filing?

Blogging

Blogging Reporting Advertising Advertising

Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)

Technology & Marketing Law Blog

JUNE 27, 2022

To do the authentication, businesses will be forced to collect personal information they don’t want to collect and consumers don’t want to give, and that data collection creates extra privacy and security risks for everyone. Third, this bill reaches topics well beyond children’s privacy.

Privacy

Privacy Designs Design Business

2H 2022 Quick Links, Part 1 (Marketing, Privacy)

Technology & Marketing Law Blog

DECEMBER 27, 2022

“ Privacy. * Prior blog post. * The post 2H 2022 Quick Links, Part 1 (Marketing, Privacy) appeared first on Technology & Marketing Law Blog. In re Meta Pixel Healthcare Litigation, 2022 WL 17869218 (N.D. ” * Williams v. The settlement agreement.

Privacy

Privacy Marketing Marketing Social Media

X Corp. v. Bright Data is the Decision We’ve Been Waiting For (Guest Blog Post)

Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance

Trending Sources

Instacart’s Privacy Policy Protects Stripe from Consumer Privacy Claims–Silver v. Stripe

Should Copyright Preemption Moot Anti-Scraping TOS Terms? (Guest Blog Post)

Contractual Control over Information Goods after ML Genius v. Google (Guest Blog Post)

Poorly Executed “Sign-in-Wrap” Contract Formation Process Fails–Berman v. Freedom Financial

FitBit’s Contract Formation Upheld Despite Different Ways of Linking to the TOS—Houtchens v. Google (with Bonus Contracts Quick Links)

California Appellate Court Rejects Poorly Executed “Sign-In Wrap”–Sellers v. JustAnswer (Guest Blog Post)

Chegg Is Likely to Prevail on Its Anti-Scraping CFAA Claim…But Doesn’t Get an Injunction–Chegg v. Doe (Guest Blog Post)

Hello, You’ve Been Referred Here Because You’re Wrong About Web Scraping Laws (Guest Blog Post, Part 2 of 2)

The Digital Age of Journalism: My Placement at “The Globe and Mail”

Court Says Twitter Misused Litigation to Punish Defendants for Their Speech–X v. CCDH

Lawsuit Still Goes to Arbitration, Even Though Amazon Has Since Removed Its Arbitration Clause–Nicosia v. Amazon

Ownership, Licensing, and Fair Use of Copyright for Webinars

Facebook Faces Contributory Trademark Liability for Marketplace Listings–Car-Freshner v. Meta

My “Summer” 2022 Activities

Two More Cases Compel Arbitration for Dubious Online Contracts (Guest Blog Post)

Another Court Finds an “Enforceable Browsewrap.” MAKE IT STOP–Hawkins v. CMG

Can Facebook Stop Data Snarfers?–Meta v. BrandTotal

If TOS Formation Fails, Bad Legal Outcomes Are Likely to Follow–Doe v. Roblox

An E-Commerce Site Tried to Form Its TOS Three Different Ways. None of Them Worked–Chabolla v. ClassPass

Once Again, LinkedIn Can’t Use CFAA To Stop Unwanted Scraping–hiQ v. LinkedIn

If a Lawyer Accepts a TOS While Investigating a Claim, Does It Bind the Client to Arbitration?

How Can AI Models Legally Obtain Training Data?–Doe 1 v. GitHub (Guest Blog Post)

Data Breaches: Regulatory and Contractual Notification Obligations

Section 230 Protect Apple’s App Store from Claims Over Cryptocurrency Theft–Diep v. Apple

Boat Rental Marketplace Defeats Lawsuit Over Offline Boating Accident–In re Chaves

Shielding Innovation: Understanding Copyright Protection for App Developers and Their Software

Courts Still Have No Clue How to Determine Who Owns Social Media Accounts–JLM v. Gutman

Another Example of How “Notice and Explanations” Requirements are a Liability Trap–Shared v. Facebook

Growth of Virtual Youtubers and IP Complications

Departing Employees Rename Their Former Employers’ Facebook Account. That May Be a Problem–La Baguette v. Tito & Tita

My Testimony to the Colombian Constitutional Court Regarding Online Account Terminations and Content Removals

TOS Supports Injunction Against Web Scraping–Southwest Airlines v. Kiwi

The Legal Boundary of Data Scraping in Light of Van Buren v. United States

Print-on-Demand Services Face More Legal Woes–Canvasfish v. Pixels

More Chaos in the Law of Online Contract Formation

Taking the Mona Lisa Effect from Illusion to Reality: Enhancing the Museum Experience with Augmented and Virtual Reality

What is Blockchain Technology and has it been Patented?

What is Blockchain Technology and has it been Patented?

What is Blockchain Technology and has it been Patented?

Lawyer’s Agreement to Online Terms if Investigating a Claim May Bind a Client

Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)

2H 2022 Quick Links, Part 1 (Marketing, Privacy)

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