Tuesday, November 21, 2006

CDA to the Rescue!

The Communications Decency Act (47 USC Section 230(c)(1)) ("CDA") exculpates service providers for content on their systems. The California Supreme Court applied the CDA in Barrett v. Rosenthal (see http://www.courtinfo.ca.gov/opinions/documents/S122953.PDF) to find that the operator of a web site was insulated from liability as a "distributor" of defamatory statements, reversing the Court of Appeals and applying Zeran v. America Online,Inc. (4th Cir. 1997) 129 F.3d 327, 331-333.

The CDA has become the poster boy for all providers of allegedly actionable content on the Internet. This is a perfect example of how broadly a court will go to make Section 230 apply out of concern for the supposedly chilling effect a contrary holding would have. But should Rosenthal really have been insulated? She knew about the allegedly defamatory posts. What if someone instead of posting to a web site had painted the statements on Rosenthal's garage door and she permitted them to remain?

Thursday, November 09, 2006

Shrink-wrap License Agreement Case

Interesting case at http://www.kscourts.org/kscases/supct/2006/20061027/95102.htm. The Kansas Supreme Court holds that a shrink-wrap license agreement that treats use of the software as acceptance of the terms is not binding upon a customer who previously signed a written contract for the purchase of the software. Where that contract failed to incorporate the license, the license terms are "additional terms" that require the customer's further assent.

The moral for software purveyors is to ensure that their click-wrap or shrink-wrap licenses contain appropriate merger clauses!

Wednesday, November 08, 2006

Microsoft is now a Registrar

Microsoft is now a domain name registrar. See http://news.yahoo.com/s/pcworld/20061108/tc_pcworld/127781