Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Online service providers typically seek to mitigate risk by including arbitration clauses in their user agreements. In order for such agreements to be effective, however, they must be implemented properly. <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3201&context=historical" target="_blank" rel="noopener noreferrer">Babcock vs. Neutron Holdings, Inc</a>., a recent Southern District of Florida case involving a plaintiff who was injured while riding one of the defendant’s Lime e-scooters, illustrates that courts will closely scrutinize the details of how an online contract is presented to users to determine whether or not it is enforceable.As we have noted, online contracts are more likely to be enforced where (1) the terms are conspicuously displayed so that users have notice of them, and (2) users are required to take some affirmative action (e.g., checking a box or clicking a button) to indicate acceptance of the terms.In Babcock, the relevant terms were provided to users within the Lime App, a smartphone application that users must download before renting a Lime e-scooter. After downloading the app, the user is prompted to create an account. During account creation, the user is prompted to agree to Lime’s User Agreement and Terms of Service.We have often <a href="https://www.sociallyawareblog.com/2020/06/01/court-discovers-rare-and-elusive-enforceable-browsewrap/" target="_blank" rel="noopener noreferrer">expressed skepticism</a> of courts’ penchant for categorizing online contracts into one or another variety of “-wrap” contract – e.g., “browsewraps,” “clickwraps,” “scrollwraps,” “hybridwraps,” etc. In this case, after analyzing the user interface, the court characterized the Lime User Agreement as a “sign-wrap” agreement, citing <a href="https://casetext.com/case/selden-v-airbnb-inc-1" target="_blank" rel="noopener noreferrer">Selden v. Airbnb, Inc</a>. According to the Babcock court, a sign-wrap agreement exists where “a user signs up to use an internet product or service, and the sign-up screen states that ‘acceptance of a separate agreement is required before the user can access the service’.”The court spent some time analyzing the details of the Lime app’s user interface, a screenshot of which is included in the published opinion:<figure style = "float: none;;width: 185%;max-width:100%;"><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltc9f8a2a0015bd197/627319230d4d8e1d7f10f36e/limebikeuseragreement-185x300.jpg?format=auto&quality=60" alt="User agreement screencap" type="asset" asset-alt="User agreement screencap" data-sys-asset-alt="User agreement screencap" data-sys-asset-position="none" sys-style-type="download" ></figure>The court noted that:[T]he blue boldface hyperlink to the User Agreement’s terms (where the user could read the full arbitration provision) combined with the unambiguous warning that by tapping “I Agree” the user confirms that he or she “read and agreed to Lime’s User agreement,” is conspicuous enough to put a reasonably prudent smartphone user on inquiry notice of the [a]rbitration [p]rovision.According to the court, any reasonably prudent smartphone user knows that blue boldfaced text is a hyperlink. The court further states, “the large black boldface User Agreement title, the non-bold black User Agreement acknowledgement, the blue boldface User Agreement hyperlink, and the lime-green ‘I Agree’ confirmation created a user friendly display.”The court goes on to say that the assortment of contrasting colors, the use of bold versus non-bold fonts, and the empty white space contribute to a visual separation of information that makes the user clearly understand that, by tapping the “I Agree” button, he or she is agreeing to be bound by the hyperlinked user agreement.This visually clear design is repeated in the user agreement itself where the first sentence of the first paragraph is bolded and in all caps. This sentence informs the user that the terms are binding and that accessing and using the services signal agreement with the terms. The second sentence of the user agreement, which is also bolded and in all caps, informs the user of the arbitration clause and warns the user not to use the Lime service if she or he does not agree with the arbitration provision.Taken together, the court held, these features of the Lime app’s user interface and registration process resulted in a binding contract between Lime and the plaintiff. Accordingly, the plaintiff was bound by the arbitration provision contained in the Lime user agreement.The result in Babcock is not surprising and is consistent with prior cases upholding online contracts with similar implementations. But the case is a useful illustration of the fact that details matter when implementing an online contract, and that clarity of the user interface and design—including fonts, color, bolding, underlining, titles, hyperlinks, presentation of screens, etc. —may determine whether arbitration clauses and other crucial risk-mitigation provisions are enforceable against users.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

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Sweating the Details: Court Analyzes User Interface to Uphold Online Arbitration Clause

Sweating the Details: Court Analyzes User Interface to Uphold Online Arbitration Clause

Online service providers typically seek to mitigate risk by including arbitration clauses in their user agreements. In order for such agreements to be effective

As we have noted many times in <a rel="noopener noreferrer" target="_blank" href="https://www.sociallyawareblog.com/?s=browsewrap">prior articles</a>, courts often refuse to enforce “browsewrap” agreements where terms are presented to users merely by including a link on a page or screen without requiring affirmative acceptance. Courts typically look more favorably on “clickwrap” agreements where users agree to be bound by, for example, checking a box or clicking an “I accept” button.The problem is that many implementations of online contracts do not fit neatly into one category or the other. The result is that courts, seemingly unable to resist the siren song of the “-wrap” terminology, find themselves struggling to shoehorn real-life cases into the binary clickwrap/browsewrap rubric, and often resort to inventing new terminology such as the dreaded “<a rel="noopener noreferrer" target="_blank" href="https://www.sociallyawareblog.com/2019/07/23/court-holds-that-arbitration-clause-in-hybridwrap-terms-is-unenforceable/#more-9283">hybridwrap</a>.”<a rel="noopener noreferrer" target="_blank" href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3218&context=historical">HealthplanCRM, LLC v. Avmed, Inc.</a>, a case out of the Western District of Pennsylvania, illustrates this phenomenon. Plaintiff Cavulus licensed certain CRM software to defendant AvMed. AvMed decided to replace Cavulus software with a different CRM product and engaged defendant NTT to assist AvMed in transitioning its data to the successor product. Cavulus alleged, among other things, that NTT misappropriated its trade secrets in the course of doing this work. Cavulus sought to compel NTT to arbitrate these claims based on an arbitration clause contained in an “End-User Agreement” that was referenced in a link on the log-in page of the Cavulus software.NTT was not a party to the original license agreement between Cavulus and AvMed and, in fact, NTT never executed any agreement at all with Cavulus. NTT argued, therefore, that it had not agreed to arbitrate disputes with Cavulus. Cavulus argued, however, that NTT was bound by the arbitration provision in Cavulus’ End-User Agreement. NTT never signed the End-User Agreement, but NTT employees were presented with a link to the End-User Agreement when they logged into the Cavulus software in the course of performing the data transition work for AvMed. This is a screenshot of the Cavulus log-in page (Note: Socially Aware editors added the red arrow for the readers’ benefit. It did not appear on Cavulus’s web page).The log-in page includes a statement “Use of Cavulus constitutes acceptance of the End User License Agreement” with the underlined text functioning as a hyperlink to the actual End User License Agreement. Cavulus argued that NTT was bound by the agreement because its employees accessed and used the Cavulus software in order to do their work for AvMed. Specifically, Cavulus alleged that nine NTT employees accessed the Cavulus software more than 75 times, each time logging in on the page with the link to the End User License Agreement.NTT argued that the link to the End-User License Agreement was not conspicuous enough to be enforced, due to the size of the text and its placement below the log-in boxes. The court rejected this argument, however, noting that the link was “not concealed at the bottom of a web page or hidden in fine print,” as is often the case with browsewrap implementations that are held to be unenforceable. The court cites <a rel="noopener noreferrer" target="_blank" href="https://www.leagle.com/decision/infco20170329115">James v. Global TelLink Corp.</a> for the proposition that continued use of a website will constitute “sufficient manifestation of intent” to be bound where the website contains an “explicit textual notice” that such use constitutes acceptance of the applicable terms.The court’s analysis harkens back to – and, indeed, cites to – older cases, such as <a rel="noopener noreferrer" target="_blank" href="https://h2o.law.harvard.edu/cases/4518">Ticketmaster Corp. v. Tickets.com</a>, which held that Ticketmaster’s website terms of use were enforceable against Tickets.com, despite the fact that Tickets.com had never expressly agreed to be bound, where Ticketmaster “placed in a prominent place on the home page the warning that proceeding further binds the user to the conditions of use.”But rather than forthrightly declaring that the Cavulus End-User License Agreement was a browsewrap agreement but nonetheless enforceable in the circumstances, the court goes on to muddy the waters by observing that because the explicit warning that “use” of the software ‘constitutes acceptance’ appears directly below the log-in button, the language arguably functions more like a “clickwrap” agreement than a traditional browsewrap agreement—perhaps falling somewhere between the two. That is, while Cavulus does not ask its users to check an “I Accept” box, as is the case with a typical clickwrap agreement, the placement of an explicit warning directly below a log-in button has a similar psychological effect. And clickwrap agreements are routinely enforced by the courts.Once the court’s analysis devolves to theorizing that perhaps the agreement that we thought was a browsewrap is actually somewhat like a clickwrap because it has a “similar psychological effect,” one has to wonder whether the whole enterprise of classifying online contracts into one or another category of “-wrap” is really helpful.As we have <a rel="noopener noreferrer" target="_blank" href="https://www.sociallyawareblog.com/2016/06/14/scroll-box/">written before</a>, the key considerations in forming an online contract with a user are whether the terms were conspicuously presented so that the user had notice of the terms, and whether the user took some action to accept the terms. A well-implemented clickwrap meets both of these criteria, while a typical browsewrap likely meets neither. But, as HealthplanCRM, LLC v. Avmed, Inc. and many other cases illustrate, the line between “clickwrap” and “browsewrap” is not always clear, and therefore it is often unhelpful to force a particular implementation of an online contract into one or the other of these two categories (or some tortured “hybrid” category). In many cases, an analysis based on the underlying contract formation principles rather than the “-wrap” terminology will make more sense.

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Court Discovers Rare and Elusive “Enforceable Browsewrap”

Court Discovers Rare and Elusive “Enforceable Browsewrap”

As we have noted many times in prior articles, courts often refuse to enforce “browsewrap” agreements where terms are presented to users merely by including a l

Courts continue to grapple with the enforceability of online agreements. While courts generally enforce clickwrap agreements—online agreements where users affirmatively show their acceptance after being presented with the terms, usually by clicking “I agree”—browsewrap agreements have stood on shakier enforceability grounds. Browsewrap agreements are online terms that, unlike a clickwrap agreement, do not require any affirmative indication of consent. Indeed, users can often continue using a website without ever viewing the terms of a browsewrap agreement, or possibly even knowing they exist. As the Northern District of California’s decision in <a href="https://www.leagle.com/decision/infdco20190506976" target="_blank" rel="noopener">Alejandro Gutierrez v. FriendFinder Networks Inc.</a> demonstrates, browsewrap agreements are not always unenforceable, but reaching such a determination can be a highly fact-specific inquiry requiring significant discovery—including discovery of offline activities, such as phonecalls between the user and the online service provider.AdultFriendFinder.com (AFF) is an online dating website. The website is generally free, although users can pay for particular upgrades and services. Users must register to use the site, and AFF collects users’ personal information as part of the registration process. Use of AFF is governed by the site’s Terms of Use (the Terms). Users don’t have to explicitly agree to the Terms in order to register or use AFF, but the Terms are readily available on the site, and they state that continued use of AFF constitutes acceptance. The Terms also include an arbitration provision.Gutierrez began using AFF at least as early as July 2003, and continued using it for over a decade. Throughout this time, he provided personal information to AFF, including his name, address, credit card information, and photos.Gutierrez alleges that, in October 2016, someone hacked AFF’s systems and downloaded the personal information of 339 million AFF users. Based on this security breach, Gutierrez brought a putative class action in the federal district court of the Northern District of California against FriendFinder Networks, Inc. (“FriendFinder”), which owns and operates AFF. FriendFinder sought to dismiss the action and compel arbitration, based on the arbitration provision in the Terms. Gutierrez argued that he was not bound by the arbitration provision, because he never agreed to the Terms.Ultimately, the court found that Gutierrez did in fact agree to the Terms, despite the absence of evidence that he had ever viewed them, and granted FriendFinder’s motion to compel arbitration. According to the court, the Terms could be considered a browsewrap agreement because AFF did not require users to expressly indicate consent, or visit any page containing the Terms, before registering and using the site. Although browsewrap agreements are rarely enforced, the court found that the Terms were enforceable against Gutierrez in this instance. According to the court, Gutierrez was on inquiry notice that his continued use of the site would constitute an indication of his intent to be bound, and Gutierrez in fact gave such an indication by using the site after receiving the notice.Importantly, the court based its finding on a 2013 call between Gutierrez and a FriendFinder customer support representative. Gutierrez called FriendFinder customer support after losing access to AFF. The representative informed Gutierrez that he’d lost access to AFF because he had posted his email address in an AFF chatroom “in violation of [AFF’s] Terms of Use.” When Gutierrez said he didn’t understand why posting in a chatroom was “such a big deal,” the customer support representative explained, “Because we set restrictions on the website . . . .  you need to follow our rules and regulations.” According to the court, this conversation constituted notice to Gutierrez that, if he wanted to use AFF, he would be bound by the Terms. Once Gutierrez regained access to AFF, he continued using the site. Although he never read the Terms, the Terms were readily available on AFF. Because Gutierrez continued to use AFF after the representative notified him that the Terms govern his use of the site, and because the Terms clearly state that continued use of AFF constitutes acceptance, the court found that Gutierrez had in fact accepted the Terms.Although the court ultimately enforced AFF’s browsewrap terms, this case should still be a warning to website operators about the risks of using browsewrap agreements. The court could have reached a different decision if the plaintiff hadn’t had a separate customer support call that mentioned the Terms, or if FriendFinder had been unable to produce evidence of the call.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

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Just Browsing: District Court Finds Browsewrap Agreement Enforceable

Just Browsing: District Court Finds Browsewrap Agreement Enforceable

Courts continue to grapple with the enforceability of online agreements. While courts generally enforce clickwrap agreements—online agreements where users affir

On July 19, 2018, in <a href="https://www.courtlistener.com/docket/6155716/24/may-v-expedia-inc/" target="_blank" rel="noopener">May, et al. v. Expedia Inc.</a>, U.S. Magistrate Judge Mark Lane issued a Report and Recommendation recommending that U.S. District Judge Robert Pitman for the Western District of Texas grant a motion to compel arbitration and dismiss a putative class action on the grounds that the plaintiff agreed to the defendants’ website’s Terms and Conditions, which contained a mandatory arbitration clause.HomeAway User Files Putative Class Action HomeAway is an online marketplace for vacation rental properties where property owners can list their properties for rent and travelers can book rental properties. HomeAway’s original business model was to charge owners a fee to list their properties (either on a one-year subscription or pay-per-booking basis) and to allow travelers to search and book rentals for free. HomeAway was acquired by Expedia in 2015 and changed its business model to charge travelers a fee to book rentals in mid-2016. Plaintiff James May had been a property owner who used HomeAway since 2013.In November 2016, the plaintiff filed a putative class action against Expedia and HomeAway for breach of contract, fraud, fraudulent concealment, and Oregon and Texas state law claims based on HomeAway’s imposition of a “traveler fee” and its negative effect on owners who used HomeAway to rent properties. The defendants moved to compel the plaintiff to arbitrate his claims based on HomeAway’s 2016 Terms and Conditions, which contained a mandatory arbitration clause.The defendants argued that the plaintiff agreed to the Terms and Conditions (and thus the arbitration clause incorporated therein) twice:<ul><li>when he renewed his HomeAway subscription in September 2016; and</li><li>when he booked his property through HomeAway’s website in October 2016.</li></ul>The plaintiff argued that he did not agree to the Terms and Conditions because:<ul><li>he renewed his HomeAway subscription in his wife’s name;</li><li>he did not receive actual or constructive notice that he agreed to the Terms and Conditions when he clicked “Continue” during the booking process; and</li><li>any agreement to arbitrate is illusory and unenforceable.</li></ul>Following the Fifth Circuit’s 2018 decision in <a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50088-CV0.pdf" target="_blank" rel="noopener">Arnold v. HomeAway, Inc.</a>, the parties agreed that the plaintiff’s argument that the arbitration agreement is illusory is precluded and that the only issue before the court was whether the parties entered an arbitration agreement. Magistrate Judge Lane then issued his Report and Recommendation finding the plaintiff contractually bound to the 2016 Terms and Conditions based on his subscription renewal and booking his property through HomeAway.HomeAway User’s Assignment of Account Not Enforceable First, the magistrate judge rejected the plaintiff’s argument that, because he had purchased the renewal subscription in his wife’s name on her behalf and with her authorization, he had not agreed to the 2016 Terms and Conditions on his own behalf. Although the plaintiff specifically renewed the subscription in his wife’s name to avoid being bound by the 2016 Terms and Conditions, he offered no legal argument or basis to show that this had any legal effect.The 2015 Terms and Conditions expressly did not allow the plaintiff to assign the Terms and Conditions absent HomeAway’s consent, and there was no evidence that HomeAway had consented to the purported assignment from the plaintiff to his wife.HomeAway User Was on Notice of Agreement to the Terms and ConditionsSecond, the magistrate judge rejected the plaintiff’s argument that, due to the placement and typeface of the hyperlink used by HomeAway, he had no notice that he was agreeing to the 2016 Terms and Conditions when he booked his property through HomeAway’s website.Magistrate Judge Lane distinguished the 2014 opinion in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/18/12-56628.pdf" target="_blank" rel="noopener">Nguyen v. Barnes & Noble, Inc.</a>, which involved a hyperlink to the terms at the bottom of a webpage and did not require any affirmative action to demonstrate the user’s agreement to the terms. In contrast, HomeAway’s website presented the user with a notice directly above the “Continue” button that informed the user that he was agreeing to the hyperlinked Terms and Conditions by clicking the button to continue. A user could not complete the transaction without clicking the “Continue” button. This was sufficient to put the plaintiff on notice that he was agreeing to the hyperlinked Terms and Conditions by continuing the transaction.HomeAway User Equitably Estopped From Arguing Not BoundFinally, Magistrate Judge Lane noted that, if the plaintiff was not bound by the Terms and Conditions, the plaintiff could gain all of the benefits of his HomeAway account without being bound to terms he did not want to accept. Such a result dictates that even if the plaintiff was not contractually bound, he should be equitably estopped from contending that he is not bound by the Terms and Conditions.HomeAway TakeawayAlthough Judge Pitman has not issued a final order granting or denying the motion to compel arbitration, Magistrate Judge Lane’s Report and Recommendation provides insights into how a website operator can help to ensure that its users are subject to its online contractual terms, even where a user intentionally seeks to avoid being bound by such terms.*       *       *For more on the enforceability of online contracts, please read the following Socially Aware posts: <a href="https://www.sociallyawareblog.com/2016/02/22/clickwrap-browsewrap-and-mixed-media-contracts-a-few-words-can-go-a-long-way/" target="_blank" rel="noopener">Clickwrap, Browsewrap and Mixed Media Contracts: A Few Words Can Go a Long Way</a>; <a href="https://www.sociallyawareblog.com/2016/06/14/scroll-box/" target="_blank" rel="noopener">Terms and Conditions Buried in Easily Ignored Scroll Box Don’t Cut It, the Seventh Circuit Holds</a>; <a href="https://www.sociallyawareblog.com/2016/08/31/court-upholds-enforceability-of-clickwrap-employee-agreement/" target="_blank" rel="noopener">Court Upholds Enforceability of “Clickwrap” Employee Agreement</a>, and; <a href="https://www.sociallyawareblog.com/2015/10/06/three-steps-to-help-ensure-the-enforceability-of-your-websites-terms-of-use/" target="_blank" rel="noopener">Three Steps to Help Ensure the Enforceability of Your Website’s Terms of Use.</a>

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Sneaky Website User Bound by Online Terms of Use’s Arbitration Provision Despite Renewing Subscription in Spouse’s Name

Sneaky Website User Bound by Online Terms of Use’s Arbitration Provision Despite Renewing Subscription in Spouse’s Name

On July 19, 2018, in May, et al. v. Expedia Inc., U.S. Magistrate Judge Mark Lane issued a Report and Recommendation recommending that U.S. District Judge Rober

In a decision that has generated considerable controversy, a federal court in New York has held that the <a href="https://www.dailydot.com/debug/embed-tweet-copyright/" target="_blank" rel="noopener">popular practice of embedding tweets into websites and blogs can result in copyright infringement</a>. Plaintiff Justin Goldman had taken a photo of NFL quarterback Tom Brady, which Goldman posted to Snapchat. Snapchat users “screengrabbed” the image for use in tweets on Twitter. The defendants—nine news outlets—embedded tweets featuring the Goldman photo into online articles so that the photo itself was never hosted on the news outlets’ servers; rather, it was hosted on Twitter’s servers (a process known as “framing” or “inline linking”). The court found that, even absent any copying of the image onto their own servers, the news outlets’ actions had resulted in a violation of Goldman’s exclusive right to authorize the public display of his photo.If <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2511" target="_blank" rel="noopener">legislation recently introduced in California</a> passes, businesses with apps or websites requiring passwords and enabling Golden State residents younger than 18 to share content could be prohibited from asking those minors to agree to the site’s or the app’s terms and conditions of use.After a lawyer was unable to serve process by delivering court documents to a defendant’s physical and email addresses, the Ontario Superior Court <a href="http://www.globallegalpost.com/big-stories/canadian-claim-served-by-instagram-4026143/?utm_campaign=D1_06_02_18&utm_medium=email&utm_source=newsletter_d11" target="_blank" rel="noopener">granted the lawyer permission to serve process</a> by mailing a statement of claim to the defendant’s last known address and by sending the statement of claim through private messages to the defendant’s Instagram and LinkedIn accounts. This is reportedly the first time an Ontario court has permitted service of process through social media. The first instance that we at Socially Aware heard of a U.S. court permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a social media account happened <a href="https://www.sociallyawareblog.com/2014/10/16/new-york-family-court-magistrate-allows-unprecedented-service-of-process-via-facebook-will-others-follow/" target="_blank" rel="noopener">back in 2014</a>.Videos that impose celebrities’ and non-famous people’s faces onto porn performers’ to produce believable videos have surfaced on the Internet, and are on the verge of proliferating. Unlike the non-consensual dissemination of explicit photos that haven’t been manipulated—sometimes referred to as “<a href="https://www.sociallyawareblog.com/2014/01/29/keeping-privates-private-the-legal-landscape-of-revenge-porn/" target="_blank" rel="noopener">revenge porn</a>”—this <a href="https://www.wired.com/story/face-swap-porn-legal-limbo/" target="_blank" rel="noopener">fake porn is technically not a privacy issue</a>, and making it illegal could raise First Amendment issues.By mining datasets and social media to recover millions of dollars lost to tax fraud and errors, the IRS may be violating common law and the Electronic Communications Privacy Act, according to an op-ed piece in The Hill.A woman is suing her ex-husband, a sheriff’s deputy in Georgia, for <a href="https://www.cnn.com/2018/03/09/us/facebook-post-ex-husband-police-jail-trnd/index.html" target="_blank" rel="noopener">having her and her friend arrested and briefly jailed for posting on Facebook</a> about his alleged refusal to drop off medication for his sick children on his way to work. The women had been charged with “criminal defamation of character” but the case was ultimately dropped after a state court judge ruled there was no basis for the arrest.During a hearing in a Manhattan federal court over a suit brought by seven Twitter users who say President Trump blocked them on Twitter for having responded to his tweets, the plaintiffs’ lawyer compared Twitter to a “virtual town hall” where “blocking is a state action and violates the First Amendment.” An assistant district attorney, on the other hand, analogized the social media platform to a convention where the presiding official can decide whether or not to engage with someone. The district court judge who heard the arguments refused to decide the case on the spot and encouraged the parties to settle out of court.Have your social media connections been posting headshots of themselves alongside historical portraits of people who look just like them? Those posts are the product of a Google app that matches the photo of a person’s face to a famous work of art, and the results can be fun. But not for people who live in Illinois or Texas, where access to the app isn’t available. Experts believe it’s because <a href="http://money.cnn.com/2018/01/17/technology/google-arts-culture-not-working/index.html" target="_blank" rel="noopener">laws in those states restrict how companies can use biometric data</a>.The stock market is apparently keeping up with the Kardashians. A day after Kim Kardashian’s half-sister <a href="http://money.cnn.com/2018/02/22/technology/snapchat-update-kylie-jenner/index.html" target="_blank" rel="noopener">Kylie Jenner tweeted her frustration with Snapchat’s recent redesign</a>, the company’s market value decreased by $1.3 billion.

Social Links: Inline link to tweet with photo could constitute copyright infringement; proposed California legislation could restrict website operators’ efforts to have minors consent to terms of use

In a decision that has generated considerable controversy, a federal court in New York has held that the popular practice of embedding tweets into websites and 

Social Links: Inline link to tweet with photo could constitute copyright infringement; proposed California legislation could restrict website operators’ efforts to have minors consent to terms of use