Oct 202011
Easy-to-Read Terms of Service?

Why are Internet Terms of Service usually so hard to read? Some lawyers will tell you that they need to be written in precise, lawyerly, language to protect the provider against legal claims from its users. And, it’s probably true that terms written in that very precise language may protect the provider in some cases where terms written in plain English won’t. However, that precision comes at a cost: most people find that very precise [...]

Sep 292011
Avoiding Class-Actions in Terms of Service

There’s been a lot of discussion in the past few months about services that use their terms of service to avoid class action lawsuits. It all started when,  in AT&T Mobility v. Concepcion, the US Supreme Court ruled a service’s Terms of Service could require disputes to be resolved in arbitration without the ability to arbitrate as a class. This overturned a rule that had existed in California, which found such provisions unconscionable, and thus [...]

Sep 122011
What should be in your Terms of Service?

The LexisNexis Legal Business Community Blog has a post about important things to put in a website’s terms of use. The author breaks down provisions into a few specific categories: (1) clarifying ownership of intellectual property, (2) the operator’s liability for what others post, and (3) limiting the operator’s liability. I recommend the post, but he misses a few important provisions: DMCA Notices. The Digitial Millennium Copyright Act grants website owners some immunity from suits [...]

Sep 062011
DMCA Technicalities

Most technical folks in the US have some passing familiarity with the notice-and-takedown provisions of the Digital Millennium Copyright Act.   The basic idea is that if you have an website and somebody, without your knowledge,  posts something to the site that infringes some third party’s copyright, then you won’t be liable for having the content on your website, so long as you remove the material when its owner asks you to. There are, however, [...]

Jul 262011
Consenting to Cookies in the EU

In 2009, the EU passed a new directive, effective May 25, 2011, with the purpose of preventing web service providers from inserting cookies into their users’ browsers without first providing “clear and comprehensive information” about how the cookies would be used and then obtaining the user’s consent. But, what does it mean to consent? What, exactly, does a service provider have to do? Luckily (or not), the EU has a Working Party that, in a [...]

Jul 072011
More on Dropbox Terms of Service

Once again, Dropbox has updated their Terms of Service to address concerns that they were trying to claim ownership of its users files. They never were, but now they’re specifically saying so. I was especially pleased that they phrased the license approximately how I suggested, by dropping reference to the specific Section 106 rights. However, now they’ve opened up a new can of worms for themselves surrounding when they can disclose it. Here’s what their [...]

Jul 032011
Getting a License Grant Right

Dropbox recently updated its Terms of Service, generating some anger among its subscribers who misunderstood this language in the new terms: By submitting your stuff to the Services, you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent we think it necessary for the Service. [...]

Jan 022011
Don't do this.

Yes, when you see a long legal agreement in a box, and an “I agree” button, that really does create an enforceable contract. Well, not exactly. Here’s a better way of putting it:  in most cases, the fact that you click a button instead of signing your name doesn’t make it any less enforceable. But, there are all sorts of reasons why contracts aren’t enforced or where one side can get out of it, and those apply [...]