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CLG Blog

December 10, 2009

What Does Your Site’s Terms of Use Say About Forum Selection?

“What is ‘forum selection’?” you might be saying. Here is a forum selection clause from a well known online retailer:

Any dispute relating in any way to your visit to Amazon.com or to products or services sold or distributed by Amazon or through Amazon.com in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in King County, Washington, and you consent to exclusive jurisdiction and venue in such courts.

Ok, now that we’re on the same page on “Forum Selection” clauses, what does your website’s terms of use/service say? If you want to resolve any of your website-related disputes near your base of operations, your forum selection clause needs to clearly state that.

Moreover, the content of your terms of use/service is nearly worthless (legally) if it’s not set up in a way that creates an enforceable contract. If you rely on the ‘browse-wrap’ method of enforcing your terms, you are at risk that your terms will not enforceable against users/customers. This method relies on the theory that your users/customers have demonstrated their willingness to accept your terms merely by their use of your site/service. Some courts have found this not enforceable. To lower this risk, it’s better to set up your terms of use/service as a ‘click-wrap.’ This means that your users/customers actually take some affirmative step to show you that they are accepting your terms. For example, have your users/customers view the terms of use/service when they are registering; make it technically necessary for them to check the ‘I Accept’ box or button in order to proceed through the registration or check-out process.

December 10, 2009

Ninth Circuit Rules That Cost of Processing Spam Not Actionable Harm Under CAN-SPAM Act

Recently the Ninth Circuit Court of Appeals, in ASIS Internet Services v. Azoogle.com, Inc. (not published), ruled that the cost of routing spam e-mail over a company's servers did not constitute the kind of harm covered by the CAN-SPAM Act. Two elements must be proved by a plaintiff under the CAN-SPAM Act: (i) Plaintiff is an 'Internet service provider', and (ii) plaintiff was 'adversely affected by' statutory violations. In the ASIS case the 9th Circuit held that the second element was not satisfied. "The mere cost of carrying SPAM emails over Plaintiff's facilities does not constitute a harm as required by the statute." Plaintiff claimed it had lost employee time due to the spam, but it failed to keep good records of such alleged losses. Plaintiff also paid for email filtering, but the costs did not rise due to the spam sent by the defendant.

December 7, 2009

Law Practice SaaS

I'm trying out AdvologixPM, a law practice management 'in the cloud' solution built on the SalesForce.com platform. So far looks very promising.

Unrelated, I'm glad to see quite a bit of entrepreneurial activity in the Fresno area. Hopefully in 2010 we'll see some of these Fresno startups receive funding.

November 16, 2009

Principles of the Law of Software Contracts

In preparation for a talk I'm giving to a group of IT professionals later this week I've started reading the American Law Institute's new "Principles of the Law of Software Contracts." The American Law Institute is the group that publishes the "Restatements". It's both exciting and somewhat frustrating to be practicing in such an evolving area of the law. From the "Principles": "These principles seek to clarify and unify the law of software transactions. In light of the many percolating legal issues that pertain to the formation and enforcement of software agreements, an attempt to 'restate' this law would be premature."

Exciting to be on the 'cutting edge' of an area of the law. Frustrating to be part of that first-wave of lawyers charged with playing the part of a tour guide in this legal frontier.

September 4, 2009

FLAT FEE. FIXED FEE. SCALABLE OUTSOURCED GENERAL LEGAL COUNSEL

I'm currently designing a monthly flat-fee outsourced general counsel program for business clients, with rates and service levels ranging from the Civic DX to the Cadillac XLR version.

One flat, predictable fee in return for scalable outsourced general counsel services. Most small to mid-sized companies cannot afford a full-time in-house legal counsel. And many of these companies get little ROI by paying law firm lawyers by the hour.