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Arbitration clause in electronic employment agreement unenforceable where evidence of execution and assent to arbitration were lacking
  • Proskauer Rose LLP
  • USA
  • April 14 2010

An arbitration clause in an electronic employment agreement cannot be enforced where the employer failed to show by a preponderance of the evidence that the employee electronically executed the agreement, a California appeals court ruled


Use of e-mail client rule to acquire copies of e-mail messages violates Wiretap Act
  • Proskauer Rose LLP
  • USA
  • January 11 2011

An employee who accessed the rule function on his supervisor's e-mail account in order to have copies of the supervisor's e-mail messages forwarded to him violated the provisions of the Wiretap Act that prohibit intentional interception of an electronic communication, the U.S. Court of Appeals for the Seventh Circuit ruled


Forwarding of allegedly defamatory e-mail protected by Communications Decency Act section 230
  • Proskauer Rose LLP
  • USA
  • January 11 2011

An individual who forwarded an allegedly defamatory e-mail received from another party is protected from liability under Section 230 of the Communications Decency Act, which provides that a user of an interactive computer service cannot be treated as the publisher or speaker of information provided by another information content provider, a district court ruled


Law enforcement may obtain historical cell site data without warrant
  • Proskauer Rose LLP
  • USA
  • January 11 2011

Law enforcement officials are not ordinarily required under the Stored Communications Act, 18 U.S.C. 2701 et seq., to obtain a warrant in order to obtain historical cell site data of an individual from a wireless telecommunications provider, the U.S. Court of Appeals for the Third Circuit ruled


Prohibition against web site scraping unenforceable, where terms of use were not readily accessible
  • Proskauer Rose LLP
  • USA
  • January 11 2011

A Web site operator could not enforce limitations on access set forth in its Terms of Use, where the ToU were not displayed on the site in a way in which a reasonable user could be expected to notice them, a district court ruled


Arbitration provision in subscriber agreement unenforceable where not clearly incorporated into clickwrap services agreement
  • Proskauer Rose LLP
  • USA
  • January 11 2011

An arbitration provision contained in an online Internet services subscriber agreement is not enforceable where the subscriber agreement was not clearly incorporated into the clickwrap services agreement presented to the subscriber at the time the subscriber installed the provider's software, a district court ruled


Early termination fee in contract for internet access not an invalid liquidated damages clause under California law
  • Proskauer Rose LLP
  • USA
  • January 11 2011

An early termination fee contained in a contract for Internet access services for a defined period is not an invalid liquidated damages clause under Cal. Civ. Code Section 1671, the U.S. Court of Appeals for the Ninth Circuit ruled


Disclosure of third-party monitoring in ISP subscriber agreement, privacy policy, deemed consent to interception under ECPA
  • Proskauer Rose LLP
  • USA
  • January 11 2011

Disclosures in an Internet service provider's subscriber agreement and privacy policy concerning third-party monitoring of subscriber Internet activity constituted sufficient notice of and assent to the deployment and use of "deep packet inspection" technology, a district court held


No fair use defense for online post of 21-page book excerpt
  • Proskauer Rose LLP
  • USA
  • January 11 2011

The blog posting of images of 21 pages of a soon-to-be-published book is not protected by the fair use doctrine and thus may be temporarily enjoined, a district court ruled


Music downloads and ringtones are licensed, not sold, under royalty agreement
  • Proskauer Rose LLP
  • USA
  • January 11 2011

Sales of music by digital downloads and by ringtones sold through carriers must be accounted to an artist under a royalty contract with a recording company as licenses rather than sales of the music, the U.S. Court of Appeals for the Ninth Circuit ruled