September 21, 2006
eBay User Agreement Upheld, Part II--Durick v. eBay
By Eric Goldman
Durick v. eBay, 2006 WL 2672795 (Oho Ct. App. Sept. 11, 2006)
I didn't anticipate this being eBay Law Week, but these issues often seem to arise in cycles. Yesterday I blogged on the Nazaruk case, which upheld eBay's forum selection clause. In that post, I claimed that the Nazaruk case was, to my knowledge, the only currently published opinion upholding eBay's user agreement.
It turns out that a few days before the Nazaruk case, an Ohio appellate court upheld the eBay user agreement. Not only that, Durick was issued by an appellate court, making it the only currently binding precedent that eBay's user agreement is enforceable.
In the Durick case, the plaintiff tried to sell various bottles, in some cases containing prescription drugs or hazardous materials that putatively violated eBay's user agreement. eBay issued 12 warnings to plaintiff over 2 years and then finally suspended his account. Instead of seeking reinstatement, the plaintiff ran to the courthouse, claiming that eBay was in breach of contract by suspending him because his auction items didn't violate the user agreement.
The court dispenses with this lawsuit pretty efficiently. It says that there was a binding contract, the plaintiff violated the contract and therefore eBay wasn't in breach of its contract. SJ for eBay.
Two interesting tidbits:
1) The court says: "The language contained in appellee's user agreement is clear and easily understandable." eBay will happily cite this sentence in future opinions!
2) eBay's user agreement has a lengthy list of documents incorporated by reference, including its "Prohibited, Questionable & Infringing Item Policy," which in turn contains sub-documents incorporated by reference, including its "Prescription Drugs" policy and its "Hazardous, Restricted, and Perishable Items" policy. Thus, for the plaintiff to see the applicable restrictions, he had to scroll down the lengthy eBay user agreement, choose from a variety of referenced links, and click at least two pages down. The court doesn't seem to care at all about this user interaction process, treating the distantly incorporated terms as an integral and enforceable part of the agreement.
TrackBack URL for this entry:
Listed below are links to weblogs that reference eBay User Agreement Upheld, Part II--Durick v. eBay:
» eBay User Agreement Enforced (Twice!) from ContractsProf Blog
The eBay user agreement has to be one of the most widely read/entered-into contracts of all time. eBay claims nearly 200 million registered users, all of whom putatively agreed to its agreement. Yet, despite this ubiquity, surprisingly few court cases [Read More]
Tracked on September 21, 2006 10:56 AM
Wow, that "documents incorporated by reference" point is a big one. I wonder how many layers deep the references can go--or how long and detailed and one-sided the contract can get. More Lochner in cyberspace, i guess.
Posted by: Frank at September 21, 2006 11:01 AM