An end-user license agreement or EULA is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restrictions which apply to the use of the software.
Step-Saver Data Systems, Inc. v. Wyse Technology was a case in the U.S. Court of Appeals for the Third Circuit primarily concerned with the enforceability of box-top licenses and end user license agreements (EULA) and their place in U.S. contract law. During the relevant period, Step-Saver Data Systems was a value-added reseller, combining hardware and software from different vendors to offer a fully functioning computer system to various end users. Step-Saver's products included software produced by Software Link, Inc (TSL), computer terminals produced by Wyse Technology, and main computers produced by IBM. The fundamental question raised in this case was whether the shrinkwrap licenses accompanying TSL's software were legally binding, given that different terms were negotiated over the phone with Step-Saver prior to receiving physical copies of the software. The case was first heard in the United States District Court for the Eastern District of Pennsylvania, where the court ruled that the shrinkwrap licenses were legally binding. However, the U.S. Court of Appeals for the Third Circuit subsequently reversed this decision, ruling that the shrinkwrap licenses were not legally binding.
The first-sale doctrine is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works. In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder puts the products on the market. In the case of patented products, the doctrine allows resale of patented products without any control from the patent holder. The first sale doctrine does not apply to patented processes, which are instead governed by the patent exhaustion doctrine.
Terms of service are the legal agreements between a service provider and a person who wants to use that service. The person must agree to abide by the terms of service in order to use the offered service. Terms of service can also be merely a disclaimer, especially regarding the use of websites. Vague language and lengthy sentences used in the terms of use have caused concerns about customer privacy and raised public awareness in many ways.
Shrinkwrap contracts or shrinkwrap licenses are boilerplate contracts packaged with products; use of the product is deemed acceptance of the contract.
A clickwrap or clickthrough agreement is a prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy. Privacy policies, terms of service and other user policies, as well as copyright policies commonly employ the clickwrap prompt. Clickwraps are common in signup processes for social media services like Facebook, Twitter or Tumblr, connections to wireless networks operated in corporate spaces, as part of the installation processes of many software packages, and in other circumstances where agreement is sought using digital media. The name "clickwrap" is derived from the use of "shrink wrap contracts" commonly used in boxed software purchases, which "contain a notice that by tearing open the shrinkwrap, the user assents to the software terms enclosed within".
Direct Revenue was a New York City company which distributed software that displays pop-up advertising on web browsers. It was founded in 2002 and funded by Insight Venture Partners, known for creating adware programs. Direct Revenue included Soho Digital and Soho Digital International. Its competitors included Claria, When-U, Ask.com and products created by eXact Advertising. The company's major clients included Priceline, Travelocity, American Express, and Ford Motors. Direct Revenue's largest distributors were Advertising.com and 247 Media. In October 2007, Direct Revenue closed its doors.
Zango,, formerly ePIPO, 180solutions and Hotbar, was a software company that provided users access to its partners' videos, games, tools and utilities in exchange for viewing targeted advertising placed on their computers. Zango software is listed as adware by Symantec, and is also labeled as a potentially unwanted program by McAfee. Zango was co-founded by two brothers: Keith Smith, who served as the CEO; and Ken Smith, who served as the CTO.
Rudder v. Microsoft Corp. [1999] OJ No 3778. is an Ontario Superior Court case that is the leading decision on clickwrap licenses and forum selection clauses in Canada.
Movieland, also known as Movieland.com, Moviepass.tv and Popcorn.net, was a subscription-based movie download service that has been the subject of thousands of complaints to the Federal Trade Commission, the Washington State Attorney General's Office, the Better Business Bureau, and other agencies by consumers who said they were held hostage by its repeated pop-up windows and demands for payment, triggered after a free 3-day trial period. Many said they had never even heard of Movieland until they saw their first pop-up. Movieland advertised that the service had "no spyware", and that no personal information would need to be filled out to begin the free trial.
Jacobsen v. Katzer was a lawsuit between Robert Jacobsen (plaintiff) and Matthew Katzer (defendant), filed March 13, 2006 in the United States District Court for the Northern District of California. The case addressed claims on copyright, patent invalidity, cybersquatting, and Digital Millennium Copyright Act issues arising from Jacobsen under an open source license developing control software for model trains.
Browsewrap is a term used in Internet law to refer to a contract or license agreement covering access to or use of materials on a web site or downloadable product. In a browse-wrap agreement, the terms and conditions of use for a website or other downloadable product are posted on the website, typically as a hyperlink at the bottom of the screen. Unlike a clickwrap agreement, where the user must manifest assent to the terms and conditions by clicking on an "I agree" box, a browse-wrap agreement does not require this type of express manifestation of assent. Rather, a web-site user purportedly gives their consent simply by using the product — such as by entering the website or downloading software.
Contract law regulates the obligations established by agreement, whether express or implied, between private parties in the United States. The law of contracts varies from state to state; there is nationwide federal contract law in certain areas, such as contracts entered into pursuant to Federal Reclamation Law.
Register.com v. Verio, 356 F.3d 393, was a decision of the United States Court of Appeals for the Second Circuit that addressed several issues relevant to Internet law, such as browse wrap licensing, trespass to servers, and enforcement of the policies of the Internet Corporation for Assigned Names and Numbers (ICANN). The decision upheld the ruling of a lower court which prevented a provider of web development services from automatically harvesting publicly available registration data from a domain name registrar's servers for advertising purposes.
Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, was a ruling at the United States District Court for the Eastern District of Pennsylvania. The case resulted in an important early ruling on the enforceability of an online End User License Agreement (EULA) under American contract law, though it did not ultimately gain influence as a precedent. The ruling also clarified the matter of personal jurisdiction for a dispute involving a user of a website that originates in a different region.
In the middle of 2009 the Federal Trade Commission filed a complaint against Sears Holdings Management Corporation (SHMC) for unfair or deceptive acts or practices affecting commerce. SHMC operates the sears.com and kmart.com retail websites for Sears Holdings Corporation. As part of a marketing effort, some users of sears.com and kmart.com were invited to download an application developed for SHMC that ran in the background on users' computers collecting information on nearly all internet activity. The tracking aspects of the program were only disclosed in legalese in the middle of the End User License Agreement. The FTC found this was insufficient disclosure given consumers expectations and the detailed information being collected. On September 9, 2009 the FTC approved a consent decree with SHMC requiring full disclosure of its activities and destruction of previously obtained information.
In re Zappos.com, Inc., Customer Data Security Breach Litigation, 893 F. Supp. 2d 1058, was a United States District Court for the District of Nevada case in which the Court held that Zappos.com's customers were not held to the browsewrap terms of use because of their obscure nature. The courts also held that the agreement was unenforceable because Zappos had reserved the right to change it at any time without informing the customers. This court decision set a precedent for businesses that use browsewrap agreements and/or include a clause in their agreements that allow them to change the agreements at any time. The decision encouraged conversation on how a business should most fairly display its terms of use and how to avoid unfairness and ambiguity when writing them.
Metro. Reg'l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591 (2013)., was a United States Court of Appeals for the Fourth Circuit case in which a court held two issues:
- The copyright owner of a collective work, such as an automated database, was not required by a pre-suit copyright registration requirement to identify names of creators and titles of individual work.
- By clicking yes to the term of use and uploading photograph, is sufficient to writing component in assignment of right under 17 U.S.C. § 204
Nguyen v Barnes & Noble, Inc., 763 F.3d 1171, was a United States Court of Appeals for the Ninth Circuit decision in which the Court ruled that Barnes & Noble's 2011 Terms of Use agreement, presented in a browsewrap manner via hyperlinks alone, was not enforceable since it failed to offer users reasonable notice of the terms. The decision set an important precedent on the future design and presentation of online contracts for consumer-facing e-commerce sites.
Luis Arnaud v. Doctors Associates, Inc. d/b/a Subway, Case No. 19-3057-cv, was a case decided by the U.S. Court of Appeals for the Second Circuit that found an arbitration clause did not apply because the terms and conditions were not reasonably conspicuous and clear on a promotional webpage.
