Barnes & Noble Browsewrap Terms of Use Get Torched

Barnes & Noble, a bookseller with both an online presence and brick and mortar stores, tried to unload discontinued Hewlett-Packard Touchpad tablet computers through its website.  Barnes & Noble underestimated the demand, resulting in its cancellation of Kevin Khoa Nguyen’s order of two Touchpads.  Nguyen was forced to purchase substitute technology at a higher price.  Nguyen brought a class action suit against Barnes & Noble, alleging deceptive business practices and false advertising under both California and New York law. 

Barnes & Noble argued that its website’s Terms of Use required Nguyen to arbitrate his claim.  The district court ruled that Barnes & Noble did not provide reasonable notice of its Terms of Use to Nguyen and that Nguyen did not unambiguously consent to the arbitration provision.  The Ninth Circuit Court of Appeals agreed.  Website owners cannot rely on Terms of Use hyperlinks posted at the bottom of the page and near the checkout button to put consumers on notice of the content of the Terms of Use.

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Alleged Infringing Downloaders Call Out Movie Owner’s Infringing Activities

Riding Films, Inc. claims to own a copyright in the movie “Dawn Ride.”  Riding Films sued unnamed “John Doe” defendants in at least fifteen separate lawsuits throughout the country, alleging that the John Doe defendants copied and distributed the film without authorization.  Specifically, Riding Films alleges that the defendants downloaded the film using the BitTorrent protocol, thereby copying and distributing without authorization.  In a case before the Southern District of Ohio, some of the individually name defendants alleged that Riding Films’ copyright is invalid and filed a declaratory judgment counterclaim.

Riding Films filed a motion to dismiss the defendants’ declaratory judgment counterclaim for failure to state a claim upon which relief can be granted.  The defendants alleged that Dawn Ride appears to be a remake of an earlier film, that Riding Films did not obtain rights to the earlier version, that Melange Pictures, LLC owns the copyrights in the earlier version and that Melange Pictures is not affiliated with Riding Films.  The district court agreed with the defendants and denied Riding Films’ motion to dismiss the declaratory judgment counterclaim.

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License for Entire Term of Helga Hat Copyright Enforceable, For Now

This case involves the enforceability of a settlement agreement in a copyright infringement lawsuit.  David John registered a copyright for a Viking hat, aka a Helga hat.  MainGate, Inc. sold Minnesota Vikings wear, including Viking hats.  John sued MainGate, alleging that MainGate’s Viking hats infringed his Helga hat copyright.  MainGate received a license from John in exchange for a lump sum payment and royalties on future sales.  One of the terms of the settlement agreement provided that “the term of this royalty obligation is for the life of the copyright and it shall end when the copyright ends. During that time, neither side can withdraw from this agreement for the life of the copyright.”  (Opinion pdf p. 8).

John grew dissatisfied with MainGate’s refusals to John’s requests for inventory audits that John believed he was entitled to under the settlement agreement.  John again sued MainGate for copyright infringement.  The district court ruled that MainGate did not breach the settlement agreement, that John could not terminate the settlement agreement and that MainGate’s license continues until John’s copyright expires.  Given an author’s copyright grant termination rights, the enforceability of the license for the entire length of the copyright remains to be seen.

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Business Owner Gives Yelp Something to Yelp About

I periodically hear business owners complain about Yelp and their inability to get negative reviews off of the Yelp website.  James Demetriades is a business owner who bought advertising on Yelp.  Demetriades believed that Yelp’s filters allowed false statements about some of his restaurants into the reviews section, while excluding positive reviews about Demetriades’ restaurants.  Yelp did not remove the false statements in the reviews after Demetriades reported them to Yelp.  Demetriades sued Yelp in California State court.  Demetriades alleged that the statements Yelp made about its filter were misleading and untrue and alleged Unfair Competition Law and False Advertising Law violations.

Yelp claimed that both its process in posting reviews on its website and Yelp’s statements about its review filtering process are protected free speech rights.  Yelp also claimed that its posting process and its statements about its review filtering process are protected by its right to make targeted speech appearing in a public forum and that its speech concerns a matter of public interest.  The trial court agreed with Yelp and dismissed Demetriades’ case.  The Court of Appeals reversed.  Since this is a California case applying California law, the court’s ruling will not apply to the law of every state.

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