Social media has upended a number of industries. Is Wall Street next?

Facebook is getting into the video game live-streaming business.

Steven Avery’s defense attorney is keeping her 163,000 Twitter followers abreast of her ongoing defense work on behalf of the “Making a Murderer” documentary subject, and some lawyers think it’s a bad idea.

Five quick and easy ways to double your social media following.

Fake Internet traffic schemes will become the second-largest market for criminal organizations behind cocaine and opiate trafficking.

Bots and fraudsters are feasting on political ad dollars.

People are spending less time on social media apps these days? With Snapchat on pace to have more than 58 million active users this year, we’re skeptical.

The man who created the Internet wants to create a less centralized web with more privacy and less government and corporate control.

Should Twitter limit the number of tweets users can send each day? Other platforms see the value in limiting posts.

In the UK the number of arrests over offensive social media posts is soaring.

Research shows an alarming number of people in the UK can’t distinguish between marketing and non-commercial content on social media, indicating potential breaches of the CAP Code (the UK’s version of the FTC’s Endorsement Guides). Here’s how social media marketers in the UK can stay on the right side of the law.

Google co-founder Larry Page is secretly building flying cars.

Our attention spans are decreasing. Here’s how that should affect your brand’s website and social media strategy.

In a massive recent theft of Twitter usernames and passwords, “123456” was the most commonly used passcode by far. Sigh.

 

0813_CCIMAGE_iStock_000036595676_LargeWebsites sometimes present their terms of use (“TOU”) to users merely by including a link to those TOU on the website without requiring users to affirmatively accept the terms by, for example, checking a box or clicking an “I accept” button. As we have written previously, Courts tend to look disfavorably on such website TOU presentations, which have become somewhat misleadingly known as “browsewrap agreements,” when determining whether a TOU constitutes an enforceable contract between the website operator and a user. According to a recent federal district court opinion, however, browsewrap TOU might be sufficient to help websites achieve another legal end: providing sufficient notice to defeat a false advertising claim based on an allegedly fraudulent omission.

In the case, Handy v. LogMeIn, Inc., the U.S. District Court for the Eastern District of California held that a software vendor’s online terms and conditions provided notice that the company might discontinue its app, and that such notice was sufficient to defeat a customer’s claims under California’s false advertising and unfair competition laws, regardless of whether the customer had affirmatively accepted the TOU.

The defendant, LogMeIn, Inc., sells software for accessing computer files remotely from separate computers or mobile devices. LogMeIn previously provided its software as two separate products: LogMeInFree, a free service that allowed users to log into remote computers from a desktop or laptop; and Ignition, a paid service that allowed users to log into computers using mobile devices. Before 2011, the plaintiff, Darren Handy, downloaded LogMeInFree and then paid for Ignition. In 2014, LogMeIn introduced a new paid product called “LogMeInPro,” which merged the features of LogMeInFree and Ignition. Eventually, LogMeIn posted a message on its website stating it would begin migrating users of LogMeInFree and Ignition to the new platform while ending support and maintenance on the older platforms. This required users of LogMeInFree and Ignition to pay for LogMeInPro in order to receive continued support and maintenance for Ignition and to continue to use the functionality previously provided for free as part of LogMeInFree.

In response, Mr. Handy brought a class action suit alleging he would never have purchased Ignition if he had known that the company would discontinue support for Ignition or require additional payment for continued access to the LogMeInFree functionality. His suit claimed that LogMeIn violated California Business and Professions Code §§ 17200 and 17500 by fraudulently failing to disclose that the company might discontinue support and change its pricing model for the software.  LogMeIn argued, among other things, that its online TOU reserved the right for LogMeIn “to modify or discontinue any Product for any reason or no reason.” But Handy argued that this statement was not binding on him because he never affirmatively accepted the TOU.

The court disagreed, however, holding that “whether the Terms and Conditions constituted an enforceable contract is irrelevant to whether the Terms and Conditions related to LogMeInFree provided notice to prospective purchasers of the Ignition app that LogMeInFree could be discontinued.” The court went on to note that, while LogMeIn’s TOU may not have been “forced on Plaintiff through a clickwrap,” the TOU nonetheless showed that LogMeIn had “publish[ed] the fact that it reserved the right to terminate the free app, LogMeInFree.” Therefore, the court held that there was “an insufficient showing that information related to the future termination of LogMeInFree constituted a material omission when selling the Ignition app.”

Clients often ask us whether a “browsewrap” TOU serves any purpose at all, in light of the fact that courts are often disinclined to construe such TOU presentations as creating an enforceable contract. Handy v. LogMeIn, Inc. shows that, in at least some circumstances, the answer is yes: even if a browsewrap does not constitute a contract, it may serve a useful purpose by providing legally significant notices to users.