How explicit does a click-wrap agreement have to be concerning updates and revisions that may later be incorporated into the agreement? In Noll. v. eBay, Inc., No. 5:11-CV-04585 (N.D. Cal., April 23, 2012), the court denied eBay’s motion to dismiss a breach of contract claim in a class-action complaint based on eBay’s revisions to a […]
Archive | Licensing
Enforceability of a Forum Selection Clause in a Clickwrap Agreement
Here are two cases that provide a further reminder of the power of clickwrap agreements, and that a party offering a clickwrap agreement can avail itself of that power only by properly presenting essential clickwrap agreement terms. In Rassoli v. Intuit, Inc., Civil No. H-11-2827 (S.D. Tex. March 19, 2012), the court enforced a forum […]
Enforcing Trade Secrets and IP Contract Rights
What happens when parties to a joint development agreement don’t follow agreed-to procedures for identifying technology created under the agreement? Lawyers can ensure that joint development agreements are larded with procedures under which rights in joint technology are protected. But do we do enough — and can we do enough — to ensure that such […]
Must an Offer to License Be Reasonable and Non-Discriminatory?
What does a patent owner have to do to meet a requirement of a standards setting organization (SSO) that license terms be reasonable and non-discriminatory (RAND)? Does the patent owner simply need to be willing to license on RAND terms, or does the patent owner have to include RAND terms in its initial offer? In […]
Clickwrap Agreement Is Binding (But Arbitration Provision Is Not)
A “clickwrap” agreement can form a binding contract even when all agreement terms are not included in the document to which the user assents, and the user must access other documents to be informed of the entire contract. Grosvenor v. Qwest Corp., 2012 U.S. Dist. LEXIS 23472, Civil Action No. 09-cv-02848-MSK-KMT (D. Colo. Feb. 23, […]
Case Note: Copyright First Sale Doctrine
A California court recently reaffirmed the principle that a restrictive software license is not a “sale” for purposes of the federal copyright laws, and that the license could not be used to assert a defense to copyright infringement based on the first sale doctrine. Adobe Systems Inc. v. Hoops Enterprise LLC, No. 4:10-cv-02769-CW (N.D. Cal., Feb. […]