Select Page

"Sign This Contract. By the Way, We Can Modify It At Any Time." Is This Enforceable?

by | Apr 22, 2009 | Contracts

Here’s an interesting case out of the U.S. District Court, Northern District of Texas.  In Harris v. Blockbuster the court refused to enforce an arbitration provision in Blockbuster’s online click-wrap agreement. The reason was that Blockbuster’s click-wrap contract was unilaterally modifiable by Blockbuster.  Here is the key paragraph, which is still on the Blockbuster Online site as of today:

These Online Rental Terms and Conditions are subject to change by Blockbuster at any time, in its sole discretion, with or without advance notice. The most current version of the Online Rental Terms and Conditions, which will supersede all earlier versions, can be accessed through the hyperlink at the bottom of the blockbuster.com site. You should review the Online Rental Terms and Conditions regularly, to determine if there have been changes. Continued use of your BLOCKBUSTER Online membership constitutes acceptance of the most recent version of the Online Rental Terms and Conditions.

Yep, I’m sure many Blockbuster subscribers check Blockbuster’s online T&Cs regularly to see if they’ve changed.  Shame on you if you don’t!

The court wrote:

The Court concludes that the Blockbuster arbitration provision is illusory . . . .  There is nothing in the terms and conditions that prevents Blockbuster from unilaterally changing any part of the contract other than providing that such changes will not take effect until posted on the website. The Court concludes that the Blockbuster arbitration provision is illusory . . . .

There are a lot of online contracts like this, and if the N.D. TX decision is good law (which is questionable), their enforceability it in question.

First Circuit: Judge Gertner, You Do Not Have the Authority to Permit Webcasting in Your Courtroom

by | Apr 17, 2009 | Copyright

The First Circuit’s decision upholding the RIAA’s challenge to Judge Gertner’s decision to permit webcasting of a motion hearing in the RIAA v. Tenenbaum case was issued on April 16, 2009, very shortly after oral argument.

The First Circuit, interpreting a D. Mass. Local Rule, held that U.S. District Judge Nancy Gertner’s interpretation of the local rule concerning photographing recording and broadcasting of courtroom proceedings was “palpably incorrect”.

This result is quite disappointing for many people who had hoped that the First Circuit would hold that Massachusetts District Court Judges have have the discretion to webcast court proceedings in their courtrooms, and that this would be a first step toward allowing the public to view federal district court civil proceedings. The decision will, many hope, lead to a change in the pre-Internet Age Rule that was found to prohibit the webcast.

First Circuit Affirms Preliminary Injunction in Copyright Case

by | Apr 13, 2009 | Copyright

Here is the First Circuit’s recent decision upholding a preliminary injunction in a copyright case  out of D. Puerto Rico.  The sole issue on appeal was the holding on substantial similarity.  The products were stuffed animals, specifically, frogs.  Or, more specifically, the Puerto Rican tree frog, the Coqui.   I’ve tried to find a picture of the defendant’s stuffed animal frog  with no luck.

Link: Coquico, Inc. v. Rodriguez-Miranda.

Boring Lawsuit We Missed the First Time Around ….

by | Apr 11, 2009 | What Were They Thinking

How many residential driveways are there in the USA? I have no idea, but I would estimate tens of millions. So it figures that someone whose driveway was videotaped by Google and put on the Internet for all to view (!?) on Google Street View would sue Google for invasion of privacy and trespass.

Copy of opinion here.

Link to the Boring’s home on Google Maps here.

My theory: these people actually crave attention for their property, and what better way to get it, than this? But then, I am married to a psychologist.

Oh, and of course, there’s this.  No need to get paranoid, now …..