Terms of Service

News & Analysis as of

Augmenting Reality: A Pokémon Go Business and Legal Primer

We have become inured to the sight of people staring at their phones rather than engaging with one another or enjoying their real-life surroundings. But, over the past two weeks, enslavement to mobile devices rose to new...more

Pokémon Go Ushers in a New, Augmented World of Legal Liability Concerns

We predicted last year that 2016 would be the year of Pokémon. This prophecy came true last week within just two days of the Pokémon Go launch. The location-based augmented reality mobile game/app quickly surpassed Tinder in...more

News of Note for the Internet-Minded

To the surprise of no one, Instagram is pretty popular; Samsung puts a billion dollars into the Internet of Things; the FCC’s trying to decide if radio noise is a problem; and there’s an approach to virtual reality that won’t...more

Six Ways Site Design Can Potentially Render TOS Agreements Unenforceable

Our recent posts on successful legal challenges to the arbitration clauses in browsewrap and clickwrap agreements have a theme in common—even the most thorough and well-worded agreement can be rendered unenforceable by...more

Clickwrap Kryptonite: Don’t Let Site Design Undermine Your TOS

We previously covered the developing legal issues with browsewrap agreements and the importance of reviewing and updating any such agreement to ensure users are bound to the terms. In a browsewrap agreement, the user’s assent...more

Trusts and Estates Group News: Estate Planning Enters the Digital Age

One reality of modern life is our increasing reliance on digital information and services. It’s difficult to take and then order prints of photographs, accumulate travel rewards, book travel, sort through financial records,...more

Class Actions Under New Jersey Warranty Law Threaten to Turn Terms-of-Service Boilerplate Into Big Potential Risks

Do your Terms of Service preclude litigants from claiming consequential damages or attorneys’ fees? If new class action lawsuits in New Jersey are right, merely including these terms, and potentially many other disclaimers,...more

Do Kanye’s Words Speak Louder than Tidal’s TOS?

A Chicago law firm has challenged Jay-Z and Kanye West, filing a class action complaint for violations of the California Business & Professions Code, fraudulent inducement and unjust enrichment in the Northern District of...more

Clickwrap Agreement From a Paper Contract?

Can a binding contract be formed merely with a link to another set of terms? (For background on this topic, check out our earlier post What, exactly, is a browsewrap? which reviews browsewraps, clickwraps, clickthroughs,...more

Mine?

Recent developments have brought to the forefront the ongoing debate about what rights, if any, gamers should have or own in their online personas or in the contributions that they make to games through their gameplay...more

How to Protect Your Company’s Social Media Currency

Today’s companies compete not only for dollars but also for likes, followers, views, tweets, comments and shares. “Social currency,” as some researchers call it, is becoming increasingly important and companies are investing...more

YouTube Rulings Emphasize the Importance of an OSP’s Terms of Service in Social Media Marketing

Two recent cases serve as a reminder of the key role an online service provider’s (OSP) terms of service play in social media marketing. The courts in Darnaa, LLC v. Google, Inc., 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015) and...more

The Value of Terms Limits: YouTube’s Broadly Defined TOS Does the Trick

Frequent readers of our blog will recall that in prior posts on companies such as Uber, Ashley Madison and Twitter, we have stressed the importance of having a robust terms of service (TOS) agreement. In many instances, TOS,...more

Another Gambling Class Action Fails – Court Finds Social Casino Games Not Gambling

A Federal Court in Washington state dismissed a Plaintiff’s class action claims that social casino games using purchasable virtual casino chips constitute gambling under Washington state law. The Court found that the virtual...more

Court Rules Virtual Currency Casino Not Illegal Gambling Despite Secondary Market

A Maryland court recently dismissed a case in which Plaintiff alleged that a virtual currency casino within a social game constituted illegal gambling, despite the existence of a secondary market for the player accounts. For...more

How Does Your Terms of Service Agreement Rate?

Online terms of service agreements are the rarely-read but often-mocked daily annoyance of Internet users worldwide. A large (literally) barrier to the immediate gratification of access to online content, most of us are...more

Click it to Stick it: Guide to Creating Binding Online Agreements

Contract terms and purchaser assent to those terms, conditions, intended use and warning information provided with a purchased product are known fertile ground for defending product claims. In today’s virtual age,...more

TCPA Connect - October 2015

After FCC Citation for TCPA Violations, Lyft Changes Terms of Service - Less than a week after the Federal Communications Commission cited Lyft for violating the Telephone Consumer Protection Act by requiring customers...more

Twitter Sued for Modification of Hyperlinks

We often espouse the value of comprehensive, up-to-date terms of service (TOS) that consistently reflect your current business. And for good reason! Plaintiffs’ attorneys will scrutinize your TOS before helping your users sue...more

Three Steps to Help Ensure the Enforceability of Your Website’s Terms of Use

Operators of social media platforms and other websites typically manage their risks by imposing terms of use or terms of service for the sites. As we previously wrote, websites must implement such terms properly to ensure...more

FCA feeds back on PAD

FCA has published a feedback statement following its call for input on how it should formulate the provisional UK list of services, terms and definitions under the Payment Accounts Directive (PAD). Following responses, FCA...more

Forum Selection in Online Terms

Let’s say you’re a Canadian company doing business with a US supplier - which law should govern the contract? ‘Forum selection’ and ‘governing law’ refer to the practice of choosing the applicable law and venue for resolving...more

Ashley Madison and Coming to “Terms” with Data Protection

A recent massive data hack of an online dating site Ashley Madison once again proves that what one publishes, says, or does online, even in seemingly private forums, is never completely private. It’s also a reminder that the...more

Have You Thought About Your Online Terms of Use Recently?

Nearly every website, app or online service posts a set of Terms of Use outlining company policies for users (sometimes called Terms of Service) (“Terms”), but many companies do not know if their Terms are enforceable in...more

Avoiding Uber Trouble via Good Terms of Service

In a recent lawsuit, Uber Technologies Inc. is accused of violating California’s Unfair Competition Law. Specifically, the complaint alleges that Uber misleads its users by: (1) falsely advertising its services as cheaper...more

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