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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Website operators often take for granted the enforceability of their websites’ terms of service. In a recent order issued in a case from the Central District of

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That’s a Wrap: Nguyen v. Barnes & Noble

That’s a Wrap: Nguyen v. Barnes & Noble | Socially Aware

Website operators often take for granted the enforceability of their websites’ terms of service. In a recent order issued in a case from the Central District of California, <a href="https://caselaw.findlaw.com/us-9th-circuit/1675706.html">Nguyen v. Barnes & Noble, Inc.</a>, <a href="http://en.wikipedia.org/wiki/Josephine_S._Tucker">Judge Josephine Tucker</a> reminds us that such presumptions are not necessarily correct: terms of service that do not require an affirmative manifestation of assent from a website user may not always be upheld in court.Many website operators, particularly Internet retailers and operators of ecommerce sites, use “<a href="http://en.wikipedia.org/wiki/Clickwrap">clickwrap</a>” (or “clickthrough”) agreements to govern use of their sites. With clickwrap agreements, the website operator typically presents its standard terms of use and then requires the user to click an “Accept” or “I Agree” button. By clicking the button, users affirmatively manifest their intent to be bound by the terms. Other website operators use “<a href="http://en.wikipedia.org/wiki/Browse_wrap">browsewrap</a>” agreements—terms of agreement that are usually accessible through a hyperlink at the bottom of a web page. Although, as a practical matter, few people <a href="http://www.techdirt.com/articles/20120420/10560418585/to-read-all-privacy-policies-you-encounter-youd-need-to-take-month-off-work-each-year.shtml">actually read them</a>, browsewraps are also widely used.Both clickwraps and browsewraps are contracts of adhesion in legal parlance. That is, they are contracts that are offered on a “take it or leave it” basis with no opportunity for negotiation. A user who does not wish to be bound by the proffered terms can click “Do Not Accept” or, for a browsewrap, simply leave the website. On the other hand, a user who is willing to be bound can indicate such assent by clicking “I Accept” or by continuing to browse the website. Reasonable people may <a href="https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service">disagree</a> regarding whether these actions truly manifest a user’s <a href="http://xkcd.com/501/">assent</a> to be bound by the relevant contract terms, but courts have frequently upheld the enforceability of both clickwrap and browsewrap terms of use (subject, of course, to the unconscionability concerns raised by any contract of adhesion). As discussed in the remainder of this article, however, browsewrap terms of use often encounter a greater degree of scrutiny from courts due to the lack of any affirmative acceptance by users.The enforceability of browsewrap terms of use has been held to depend on whether a website user has knowledge—either actual or constructive—of the applicable terms, because users cannot agree to be bound by terms unless they know what those terms are. Courts considering browsewrap enforceability issues often grapple with the question of whether the defendant was given notice of the applicable terms sufficient to impute such knowledge. For example, in Register.com, Inc. v. Verio, Inc., the court determined that numerous and repeated queries by an automated software program were sufficient to show that Verio knew of, and was bound by, Register.com’s terms (although Verio had also admitted that it had actual knowledge of the terms). On the other hand, in Ticketmaster Corp. v. Tickets.com, Inc., on the other hand, the court held that a small link to terms of use that was visible only if the user scrolled down to the bottom of the web page was insufficient to establish notice. But, three years later, the same court (in the same case, no less) ruled that more prominent notice on the site’s home page was adequate notice. While a court’s determination of sufficient notice may vary in each case, it is clear that the more readily available and conspicuous browsewrap terms of use are, the more likely it is that a court will find that the user knew of, and was bound by, the terms.That brings us to <a href="http://scholar.google.com/scholar_case?case=4632832024312330641&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Nguyen v. Barnes & Noble, Inc.</a> In Nguyen, the plaintiff’s claims arose from a Barnes & Noble promotion that offered computer tablets at a discounted price. Although Nguyen submitted an order to purchase a tablet at the promotional price, Barnes & Noble canceled his order the next day, citing an oversale of its tablet inventory. As a result, Nguyen alleged that he was “forced to rely on substitute tablet technology, which he subsequently purchased . . . [at] considerable expense.” In April 2012, Nguyen filed suit, alleging various consumer protection violations, including false advertising, unfair competition, and breach of contract, under California and New York law. Barnes & Noble then moved to compel arbitration based on an arbitration clause included in its website’s browsewrap terms of use. The question before the court was whether, given the existing facts, the arbitration clause was enforceable against Nguyen.The court ultimately held that the arbitration clause was not enforceable because the terms of use agreement itself was not enforceable. According to Judge Tucker, Barnes & Noble’s website terms of use could not bind Nguyen because Barnes & Noble “did not position any notice even of the existence of its ‘Terms of Use’ in a location where website users would necessarily see it, and certainly did not give notice that those Terms of Use applied, except within the Terms of Use” (emphasis in original). Due to this lack of adequate notice, Nguyen did not know and, in Tucker’s view, should not necessarily have known of Barnes & Noble’s terms of use. Because Nguyen did not have knowledge of the terms, he could not be bound by them. Therefore, Barnes & Noble could not compel arbitration in its dispute with Nguyen.In light of Nguyen and the other cases discussed above, website operators should consider using clickwraps that require affirmative acceptance where possible, rather than relying on browsewraps to enforce their terms of use. A simple click can be the difference between an agreement’s being found enforceable or not. For ecommerce sites or any site that requires registration prior to use, clickwraps are relatively easy to implement—for example, at the point of purchase or when the user registers—without negatively affecting the user experience. Best practices for clickwraps include presenting terms of service before payment, allowing for easy reading of all terms, allowing users to print or save a copy of the terms, offering a prominent option to decline the terms, providing an easy way for users to find the terms on the site at any time after payment or registration, and giving users notice of (and requiring users to accept) any updates and changes to the terms of use.For other sites, including some social media sites, the story may differ. Many social media sites—for example, <a href="http://pinterest.com/">Pinterest</a>, <a href="http://twitter.com/mofosocmedia">Twitter</a>, and <a href="http://www.youtube.com/">YouTube</a>—allow users to access at least some content and functionality without registering. With sites such as these, there may be no real opportunity to obtain affirmative acceptance of terms of use without degrading the <a href="http://www.youtube.com/watch?v=ri72q0kGTd0">user experience</a>, so a clickwrap is simply not a practical option. For operators of such websites, the most important lesson of Nguyen and the other cases discussed above is that the question of enforceability often turns on whether the user has sufficient notice of the terms of use. Thus, website operators can increase the likelihood that their terms of use will be enforced if links to such terms are prominently displayed, preferably “above the fold” so that a user will be able to see the link without scrolling down the page. As Nguyen and the other cases illustrate, an operator who places links to terms of use in a tiny font buried at the bottom of a page may be in for an unpleasant surprise if those terms ever need to be enforced.