May 2013

D. Mass. Judge Stearns: Advertising Claims Create Express Warranty Despite Disclaimer in EULA

Assume a software vendor makes advertising clams regarding its product’s functionality. However, its end-user license agreement (EULA) is very narrow – it provides a 30 day  express warranty that (i) “the medium (if any) on which the [s]oftware is delivered will be free of material defects” and (ii) that “the software will perform substantially in accordance with the applicable specification.” Assume further that that software performs in a manner consistent with the “applicable specification” (the user manual) but inconsistent with advertising claims for the product. In fact,  not surprisingly given that this case is in federal court, it malfunctions and wipes out the data on the purchaser’s hard drive. 

You might think that the EULA would prevent a purchaser from claiming breach of express warranty, but under Delaware law (and the law of most states) you would be incorrect.

AVG Technologies is the seller of PC TuneUp. In Rottner v.Read the full article

The Digital Millennium Copyright Act (DMCA) allows a copyright holder to send a takedown notice to an online service provider that is hosting a copyright-protected work posted by a third party. But, lest the law be used to suppress lawful speech, the DMCA requires that a takedown notice contain (among other things) a “statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” and certify, under the penalty of perjury, that the information in the notification is accurate.

What if someone sends a takedown notice that is authorized by the law, and does so in bad faith? The law provides that –

[a]ny person who knowingly materially misrepresents under this section . . . that material or activity is infringing . . . shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer .

Read the full article

Yet another “data scraping” case is percolating in the Northern District of  California. Craigslist has sued the online aggregator 3Taps, Inc. (and others), claiming that they illegally copied Craigslist’s classified apartment listings. In effect, 3Taps was attempting to disintermediate Craigslist—to insert itself between Craigslist and its users.

3Taps filed a motion to dismiss the multiple claims asserted in the suit, most of which was denied in the decision linked below.

Of particular interest is the court’s refusal to dismiss Craigslist’s claim that 3Taps violated the Computer Fraud and Abuse Act (CFAA), a controversial federal “anti-hacker” statute that has been interpreted in conflicting ways by the federal courts (see an earlier post on this topic here), and which was the law Aaron Schwartz was accused of violating (contributing, many believe, to his suicide earlier this year).

The CFAA permits a civil cause of action against any person who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains .… Read the full article