The Fading Enforceability of Passive Browsewrap Agreements

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Recently Dick’s Sporting Goods, Barnes & Noble and Proflowers.com have been on the losing side of court cases that involve enforcement of their websites’ terms of use. In each case, the defendants relied unsuccessfully on so-called “browsewrap” agreements, where a website’s terms and conditions of use are generally posted on the website via hyperlink.

The “wrap” moniker came from the brick and mortar notion that if a consumer tore open the shrink wrap on a tangible good, this constituted assent to the terms of sale printed somewhere in the packaging.  Online retailers picked up this notion by relying on “clickwrap” agreements, where consumers must check a box on a web page saying “I agree” before they can complete a transaction.  read more

Rights of Publicity Often Collide with First Amendment

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In law school we all learned about the “four privacy rights” in first year torts class: (1) intrusion into plaintiff’s private affairs; (2) public disclosure of embarrassing private facts; (3) publicity that places plaintiff in a false light; and (4) appropriation of the plaintiff’s name or likeness.

The reason that these are called rights of “privacy” is that they all serve the value of being left alone in a society where technology multiplies the risk of intrusion into our solitude and dignity.

The fourth right, appropriation of name or likeness, alone among the four privacy rights has taken on a twin character.  read more

Spillane Trial Group Wins Retrial in Royalty Action for Estate of Late Sly Stone Manager

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Spillane Trial Group won a July 25, 2016 Court of Appeal opinion in favor of the estate of the late Ken Roberts, former manager for Sly Stone.  The appellate court ordered retrial of Roberts’ breach of contract action against BMI for paying royalties assigned to Roberts to the wrong party.  https://www.courts.ca.gov/opinions/nonpub/B263923.PDF

Ken Roberts organized tours for Sly and the Family Stone from 1970 to 1973.  Roberts advanced considerable money to Sly.  Sly asked Roberts to return as his manager in 1976.  To repay Roberts for the money advanced, Sly executed a 1976 assignment of his performance royalties, administered by BMI, to Roberts.  read more

Legal Troubles Overhang Presidential Election

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This presidential election cycle is groundbreaking in so many different respects.  The one respect that intersects my world is the degree to which each presumptive nominee’s campaign is dogged by ongoing legal battles.

Hillary Clinton has been beset for months by criticism over her exclusive use of a personal email server to conduct State Department business, when according to State Department policy she should have used a government email address and government server.  The problem was not merely technical, because when she left the State Department she did not turn over her emails to the government.  Thus, when the emails were sought by subpoena in connection with the Benghazi affair, the process of reviewing and turning over responsive emails was in the hands of Clinton staff rather than the government.  read more

Gawker Verdict Reinvigorates Power of Privacy Claims

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I’m old enough to remember the days when “the news” consisted of thirty minutes on one of three major television networks.  In those days there were high barriers to entry into the world of television or print media, leaving the news in the hands of major entities that, I believe, tried to apply sincere journalistic standards.  We had a relatively high level of comfort that what was delivered to us as “news” was: a) relatively important; b) relatively objective and c) relatively accurate.

With the advent of cable television and the Internet, “news” is now ubiquitous, available 24/7 through an unlimited number of sources.  read more