Terms of Service

News & Analysis as of

Amazon Case Means EU B2C Website Terms May Need an Update

If you operate a website which does business with consumers based in the European Union, read on. In the recent case, Verein für Konsumenteninformation v Amazon EU Sàrl (28 July 2016), brought by Austrian consumer...more

Pokémon Go Faces More Criticism

Pokémon Go is a location-based augmented reality game in which players use their mobile device to catch Pokémon in the players’ real-world surroundings by utilizing the camera, GPS, and gyroscope features of the mobile...more

Commercializing User-Generated Content: Five Risk Reduction Strategies

We’re in the midst of a seismic shift in how companies interact with user-generated content (UGC). For years, companies were happy simply to host UGC on their websites, blogs and social media pages and reap the resulting...more

Court: Web Registration Did Not Establish User Assent to Arbitration Agreement

Perhaps overshadowed in the raging battle over the Consumer Financial Protection Bureau's proposal to ban the use of class action waivers in consumer arbitration agreements involving consumer financial products or services is...more

SDNY Refuses to Enforce Uber’s Online “Sign-In-Wrap” Terms, Arbitration Provision and Jury Waiver Clause

On July 29, 2016, the Southern District of New York, in Meyer v. Kalanick, refused to enforce mandatory arbitration and jury waiver provisions against a putative class of Uber consumers. In a lengthy and strongly worded...more

Pokémon Go and the Evolving Arena of Clickwrap Enforcement Against Children

According to the official Pokémon website, “kids all over the world have been discovering the enchanting world of Pokémon [for over 15 years].” Not surprisingly, many of us who used to be kids in the 15+ years are playing...more

Pokemon App Developer Sued for Failed Privacy Protections

Niantic Inc. (Niantic), developer of the mobile game “Pokémon GO,” was sued in Florida court on July 27, 2016. The named plaintiff, David Beckman filed the complaint against Niantic claiming the game’s terms of service and...more

Federal Court Decision Provides Useful Guidance to Companies Offering Products and Services Pursuant to Online Terms of Use

On July 29, 2016, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York issued an opinion and order in Meyer v. Kalanick, denying Uber Technologies' motion to compel arbitration of a consumer's...more

The Practical Legal Implications of Pokémon Go

On July 6, 2016, Nintendo released Pokémon Go in the United States. Pokémon Go is a downloadable application for your smartphone that provides for an “augmented reality experience.” In the game, computer-generated virtual...more

Pokemon GO or Pokemon No?

Unless you’ve been living under a Geodude this past month, you’ve no doubt been exposed (either willingly or unwillingly) to some part of the current social media/mobile gaming sensation, Pokemon GO. Niantic’s new “catch ’em...more

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

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