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E-Commerce News
ISP's Forum Selection Ruled Unenforceable; Battle Over Copyrighting Headlines
March 14, 2006
ISP'S FORUM SELECTION RULED UNENFORCEABLE
Can an Internet service provider include a "forum selection clause" in its terms and conditions that would require a California resident to travel 2,000 miles to recover a small monetary sum? Apparently not, at least if the California Court of Appeal has its way. That court found that such a provision was so inherently unfair, it violated public policy.
The plaintiffs in the action brought suit because Earthlink Inc. charged them for Digital Subscriber Line ("DSL") Internet service for approximately five weeks before providing the equipment necessary to use the service. Plaintiffs could not complete installation of the necessary software unless they clicked on an icon indicating they agreed to the terms and conditions of the DSL service agreement.
The plaintiff, who lived in California, sued in California court. In defense, Earthlink pointed to the provisions in its terms and conditions which required consumers with monetary claims to arbitrate in Georgia, and which forbade class action lawsuits. The California court was unimpressed. It found that a clause that imposes " unreasonable geographical barriers is unenforceable under well-settled California law." The Court also ruled that contractual provisions (at least those found in contracts where the terms are not negotiated) that preclude class actions cannot be enforced where a large number of consumers have allegedly been cheated out of small sums of money.
Here, where the plaintiff resided in California, sought to represent only California consumers, and relied only on California law to support his claim, the court very easily found that California had a materially greater interest than Georgia in determining the issues presented in the case. All of that couldn't be changed by some fine print!
BATTLE OVER COPYRIGHTING HEADLINES
In a case pending in federal court in the District of Columbia, Google Inc. and Agence France Presse are currently squaring off over the question whether news headlines can be subject to copyright protection. Both sides have filed motions for summary judgment, so it is expected that the court will decide the threshold legal issue shortly.
Google, along with bloggers and other news aggregation Web sites, frequently copies headlines for comment, or in order to refer users to other articles. A finding that headlines are copyrightable would greatly limit this service. According to Google, news headlines cannot be copyrighted because they are simply too short and too factual.
But Agence France Presse ("AFP") contends that Google's practice of grabbing AFP's headlines, leads, and photographs for Google's news aggregation sites violates AFP's copyright in thousands of AFP articles.
There does not seem to be direct precedent on this point, and even AFP's lawyer concedes that the case is one of "first impression." Counsel for Google, however, citing copyright regulations that exclude from protection "words and short phrases such as names, titles, and slogans", considers the case a slam dunk. Under this view, a headline is really nothing more than a title.
A more practical problem for the court may lie in determining exactly which news articles Google has allegedly infringed. Although AFP has alleged "thousands" of infringements, its complaint actually identifies only a few instances. AFP contends that the constantly changing nature of Google's site makes it difficult for AFP to catch the infringement. At one point AFP suggested that Google review AFP's article database and then match AFP's articles to headlines that appeared on Google's site. Google objected to such a procedure, and the court agreed. It noted that Google is under no duty to help AFP identify infringing material. As an alternative, the parties have discussed a proposal where Google would check its news archive for any AFP article fragments than ran on specified dates. That process would continue until it yielded a sample size of 50 AFP article fragments from Google News.
It will be interesting to see how the court decides this one. The stakes - on one hand, the interest in the free flow of information and on the other, the right to protect content - are huge.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.