If Everything Is Conspicuous, Nothing Is Conspicuous: Forming an Online Contract in the First Circuit

Online agreements are nothing new to the Internet but companies are still struggling to implement them in a way that will assure their enforceability.

The latest company to fail this test is Uber Technologies. A June 2018 decision issued by the First Circuit Court of Appeals in Boston held an online agreement presented to the users of the Uber smartphone app in 2012 and early 2013 was not sufficiently conspicuous to be enforceable. The terms and conditions stated that users of the app could not participate in a class action and were required to resolve any dispute with Uber by means of binding arbitration. Because the First Circuit held that this agreement is not enforceable the plaintiffs in this case—who claim that Uber engaged in unfair and deceptive pricing —will now be free to proceed with a class action against Uber.

In deciding this case the First Circuit applied Massachusetts contract law, specifically the 2013 decision of the Massachusetts Appeals Court in Ajemian v.Read the full article

Supreme Court To Decide Whether Copyright Office Action on Registration Required Before Suit

The Supreme Court accepts appeals of very few copyright cases. In the last 20 years it has decided only 14 copyright cases, and most of those involved narrow, highly technical issues of copyright law.

However, the Copyright Act (which contains 150,000 words or 250 pages of single-spaced text), is mostly a law of technicalities.

One of these technicalities arises out of the fact that copyright registration is a precondition to filing a copyright infringement suit. However, the Copyright Act is not entirely clear on what this means: must a copyright plaintiff obtain registration from the Copyright Office (or, in rare cases, a denial, but in any case a decision on its application) before it may file suit for copyright infringement? Or, is it enough that the plaintiff has filed an application for infringement, permitting the suit to proceed while the application waits to be acted on by the Copyright Office, a process that typically takes about eight months?… Read the full article

Disney v. Redbox: Misuse It and Lose It

by Lee Gesmer on May 10, 2018

Disney v. Redbox: Misuse It and Lose It

It’s rare to see a court conclude that a copyright owner has engaged in copyright misuse, but that’s the position in which Disney Enterprises, Inc. finds itself in its copyright case against Redbox Automated Retail, Inc.

The case is convoluted, since it involves both contract and unusual copyright law issues.

Disney sells  “combo packs,” which include video disks containing Disney movies and a piece of paper containing an alphanumeric download code. The download code can be used to stream the movies online. The cover of the combo pack boxes state that the “codes are not for sale or transfer.”

Redbox began purchasing Disney combo packs and, disregarding the warning on the boxes, disassembled the packages and sold the download codes in its kiosks.

Disney filed suit and asked the court for a preliminary injunction ordering Redbox to cease reselling the download codes. The court denied Disney’s motion (link to February 2018 opinion).… Read the full article

The Court of Appeals for the Federal Circuit’s second decision in the long-running Oracle v. Google copyright case is astonishing, since it is the first time a federal appeals court has reversed a jury verdict on copyright fair use. But, it’s not surprising – the CAFC telegraphed its views on Google’s fair use defense in its first decision, which held that Oracle’s Java declaring code was copyright-protected (“Google overstates what activities can be deemed transformative under a correct application of the law”).

Like its 2014 decision, the 2018 decision (decided by the same 3-judge panel) rejecting Google’s fair use defense has triggered a flood of articles analyzing, supporting or criticizing the decision.

Rather than rehash what other commentators have said about this case, here are what I see as the practical take-aways.

First, and most importantly: it ain’t over until it’s over. Google is almost certain to seek Supreme Court review (it did, unsuccessfully, after the 2014 decision – all the more reason to try again, now that it’s facing a trial on damages).… Read the full article