Archive for Contracts/Licensing

[Post by Venkat Balasubramani]

We’ve seen an increasing number of cases where parties argue that informal communications change the terms of a written agreement, or create an agreement on their own. One example I blogged about was an Instant Message conversation that a court ruled created an enforceable agreement. (See the post referenced here: “Court Rules that Instant Message Conversation Modifies Terms of Written Contract.”)

A recent copyright dispute raised this issue again. In that dispute, Coca-Cola used a song in its World Cup promotions and had an email exchange with Rafael Vergara Hermosilla, the lyricist. The author made demands in the email (that he wanted credit in the song — he was not interested in money) and Coca-Cola said it was fine with this. The entire discussion occurred over email, and the parties never signed an agreement. When it came time to sign an agreement, the lyricist balked, and later sued, alleging copyright infringement. Coca-Cola said that the email exchange constituted an enforceable agreement, and the Eleventh Circuit agreed. The court said that the email exchange was a “signed writing” that was sufficient to transfer the copyright in the lyrics. [Blog posts on this case: “11th Circuit Affirms Email Exchange as Contract” (Property, intangible) “Can You Assign a Copyright Via E-mail Exchanges?” (Clancco Art + Law).]

Read More…

[Post by Venkat Balasubramani]

Deck v. Spartz, Inc., 11-Cv-1123 (E.D. CA.; Sept. 27, 2011)

I posted about the lawsuit involving the @OMGFacts Twitter account some time ago (“Thoughts on the Lawsuit Over the @OMGFacts Twitter Account“). The account was created by Adorian Deck, who at the time was a minor. Deck signed an agreement with Spartz to commercialize the brand, and the parties ended up in a dispute over the agreement and who could control the “@OMGFacts” brand. As the court notes, Deck had an “OMG-moment,” and decided to bail out on the agreement. He sued in California to disaffirm the agreement and Spartz, an Indiana corporation, moved to dismiss or transfer the case to Indiana. The court denies Spartz’s motion and allows Deck to proceed.

Read More…

[Post by Nathan Webb]

As Internet-based business ventures have exploded over time, the commerce in domain names has followed suit. Here are some issues you should consider when purchasing or selling a domain name:

1)     Sale v. The Legal Route: Confirm you do not have a right to the domain name being offered for sale. Often, cyber-squatters register domain names that are either typo-variations of trademarks, or in some cases, exact matches to a trademark, in an effort to ransom off the domain name to the trademark holder. If this is the case in your instance, consider talking to counsel to determine if you can initiate a legal action to compel the seller to turn the domain name to you (e.g., under the Anticybersquatting Consumer Protection Act or Uniform Dispute Resolution Policy)

Read More…

[Post by Venkat Balausbramani]

One often asked question is: “How should online terms be structured?” Should users be required to check the box saying that they agree to terms? Should the terms be linked on the bottom? Do courts impose some sort of obligation on the part of consumers to read the terms for websites they use?

The answer is that a website or online merchant should do everything it can in to preempt a plaintiff’s possible argument that “I didn’t agree to the terms because I did not read them.” If a website has some sort of registration process, the best thing to do is to require a user when they sign up to check the box saying that they have read and agree to the terms. This process should be “leakproof,” meaning that there should be no way for a user to navigate beyond the registration page without clicking on the “I agree” box. This is equally applicable to merchants.

Read More…

Venkat Balasubramani recently joined Jonathan Bailey and Eric Goldman in a discussion for ‘This Week in Law.’

Hear them address a variety of topics including LimeWire, Righthaven, Twitpic’s Terms of Service and that tattoo in The Hangover, Part II.

(You can follow Focal on Twitter, Facebook and LinkedIn.)