The Ninth Circuit Has a Lot to Say About Online Contract Formation (Much of It Confusing)–Chabolla v. ClassPass
I previously summarized this case: The plaintiffs claim they signed up for a ClassPass membership but got unexpectedly auto-renewed. (ClassPass appears to be an aggregator of third-party fitness classes). ClassPass sought to send the case to arbitration based on its…
Another Conflict Between Privacy Laws and Age Authentication–Murphy v. Confirm ID
This opinion is a routine ruling over TOS formation and whether disputes must go to arbitration. However, before I dig into that question, I need to note the case’s chilling implications. * * * This case involves the Adult Friend…
Copyright Owner Prevails in Lawsuit Over Form Contracts–Equine Legal v. Fireline Farms
🚨🚨 Calling all cyberlaw nerds: here is a bona fide “Law of the Horse” case. 🚨🚨 The plaintiff is an Oregon law firm practicing equine law. The defendant runs a Florida horse ranch. In 2016, the defendant licensed the plaintiff’s…
“Volitional Conduct” Doctrine Helps DistroKid Defeat Copyright Infringement Claim–White v. DistroKid
White created “beats” and got copyright registrations for them. He orally licensed the beats to Rivers for a 50% royalty and a promise to keep booking live performances for White. Rivers incorporated the beats into her album. White alleges that…
Court Upholds Google’s Ad TOS Amendment to Add an Arbitration Clause–In re Google Digital Advertising Antitrust Litigation
This is a long-running litigation battle over Google’s advertising practices. In 2021, many individual advertiser claims were consolidated into an MDL in SDNY. Four years and 900+ docket entries later, the SNDY court holds that two plaintiffs’ claims must go…
Copyright Owners Are Still Suing Over Embedding
I thought the legality of embedding was definitively resolved when the Ninth Circuit reaffirmed the “server test” in the Hunley v. Instagram case (note: the 9th Circuit has reaffirmed Hunley twice). Not so. Plaintiffs are still regularly bringing lawsuits over…
Catching Up on the Heavyweight Scraping Battle Between X and Bright Data (Guest Blog Post)
by guest blogger Kieran McCarthy Last year, I wrote about how Elon Musk had inadvertently become web scrapers’ most powerful legal advocate. Not because he wanted to advocate for them. But rather, in seeking to enforce a no-scraping ban in…
Court Declares Parts of Twitter’s TOS Unconscionable–Gerber v. Twitter
This is a data breach case involving a flaw in Twitter’s API that allowed malefactors to steal information about 200M Twitter users. Twitter invokes its TOS, including its warranty disclaimer and limitation of liability, against the plaintiffs’ claims for breach…
Thumbs-Up Emoji Formed Binding Sales Contract in Canada–Achter v. South West Terminal
This is the instant-classic lawsuit involving a Saskatchewan farmer who text-messaged a “thumbs-up” emoji in response to an offer to buy his flax. The lower court found that the seller’s thumbs-up emoji constituted assent to the buyer’s offer and awarded…
Facebook Defeats User’s TOS Breach Claim–Lloyd v. Facebook
Lloyd sued Facebok for a variety of claims (I initially described the suit as “a standard kitchen-sink pro se lawsuit against Facebook”). The district court dismissed the complaint in 2022. This summer, the Ninth Circuit largely affirmed, but it revived…