Google Search Removal and EU Privacy Ruling Review

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
McCarthy Tétrault Advance™
Building Capabilities for Growth
Barry B. Sookman
bsookman@mccarthy.ca
416-601-7949 June 5, 2014
Toronto Computer Lawyers’ Group:
The Year in Review: (2013-2014)
13440957

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 13440957 2

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 13440957
Google v AEPD, Case C-131/12, CJEU
13 May 2014
“As regards a situation such as that at issue in the main proceedings, which
concerns the display, in the list of results that the internet user obtains by
making a search by means of Google Search on the basis of the data subject’s
name, of links to pages of the on-line archives of a daily newspaper that
contain announcements mentioning the data subject’s name and relating to a
real-estate auction connected with attachment proceedings for the recovery of
social security debts, it should be held that, having regard to the sensitivity for
the data subject’s private life of the information contained in those
announcements and to the fact that its initial publication had taken place 16
years earlier, the data subject establishes a right that that information should
no longer be linked to his name by means of such a list. Accordingly, since in
the case in point there do not appear to be particular reasons substantiating a
preponderant interest of the public in having, in the context of such a search,
access to that information, a matter which is, however, for the referring court to
establish, the data subject may, by virtue of Article 12(b) and subparagraph (a)
of the first paragraph of Article 14 of Directive 95/46, require those links to be
removed from the list of results.”
3

13 May 2014
“It follows from all the foregoing
considerations that the answer to Question
2(a) and (b) is that Article 2(b) and (d) of
Directive 95/46 are to be interpreted as
meaning that, first, the activity of a search
engine consisting in finding information
published or placed on the internet by third
parties, indexing it automatically, storing it
temporarily and, finally, making it available
to internet users according to a particular
order of preference must be classified as
‘processing of personal data’ within the
meaning of Article 2(b) when that
information contains personal data and,
second, the operator of the search engine
must be regarded as the ‘controller’ in
respect of that processing, within the
meaning of Article 2(d).”
4

13 May 2014
Therefore, if it is found, following a request by the data subject
pursuant to Article 12(b) of Directive 95/46, that the inclusion in the list
of results displayed following a search made on the basis of his name
of the links to web pages published lawfully by third parties and
containing true information relating to him personally is, at this point in
time, incompatible with Article 6(1)(c) to (e) of the directive because
that information appears, having regard to all the circumstances of the
case, to be inadequate, irrelevant or no longer relevant, or excessive in
relation to the purposes of the processing at issue carried out by the
operator of the search engine, the information and links concerned in
the list of results must be erased.”
5

13 May 2014
“Following the appraisal of the conditions for the
application of Article 12(b) and subparagraph (a) of
the first paragraph of Article 14 of Directive 95/46
which is to be carried out when a request such as
that at issue in the main proceedings is lodged with
it, the supervisory authority or judicial authority may
order the operator of the search engine to remove
from the list of results displayed following a search
made on the basis of a person’s name links to web
pages published by third parties containing
information relating to that person, without an order
to that effect presupposing the previous or
simultaneous removal of that name and information
— of the publisher’s own accord or following an
order of one of those authorities — from the web
page on which they were published.”
6

13 May 2014
¬ Google Removal Process:
¬ “A recent ruling by the Court of Justice of the European Union found that certain
users can ask search engines to remove results for queries that include their
name where those results are inadequate, irrelevant or no longer relevant, or
excessive in relation to the purposes for which they were processed.
¬ In implementing this decision, we will assess each individual request and attempt
to balance the privacy rights of the individual with the public’s right to know and
distribute information. When evaluating your request, we will look at whether the
results include outdated information about you, as well as whether there’s a
public interest in the information—for example, information about financial scams,
professional malpractice, criminal convictions, or public conduct of government
officials.
¬ If you have a removal request, please fill out the form below. Please note that
this form is an initial effort. We look forward to working closely with data
protection authorities and others over the coming months as we refine our
approach.”
7

Zhang v. Baidu.com Inc. 2014 WL 1282730
(S.D.N.Y Mar. 28, 2014)
¬ Whether the search engine baidu.com can be forced to display search results
concerning the democracy movement in China or has First Amendment protection for
its search results.
¬ “The central purpose of a search engine is to retrieve relevant information from the
vast universe of data on the Internet and to organize it in a way that would be most
helpful to the searcher. In doing so, search engines inevitably make editorial
judgments about what information (or kinds of information) to include in the results
and how and where to display that information (for example, on the first page of the
search results or later).”
¬ “Nor does the fact that search-engine results may be produced algorithmically matter
for the analysis. After all, the algorithms themselves were written by human beings,
and they "inherently incorporate the search engine company engineers' judgments
about what material users are most likely to find responsive to their queries.””
¬ “…it is debatable whether any search engine is a mere "conduit" given the judgments
involved in designing algorithms to choose, rank, and sort search results.”
¬ “Plaintiffs' efforts to hold Baidu accountable in a court of law for its editorial judgments about
what political ideas to promote cannot be squared with the First Amendment.”
8

Alberta (Information and Privacy Commissioner) v.
United Food and Commercial Workers, Local 401
2013 SCC 62
¬ “PIPA imposes restrictions on a union’s ability to communicate and persuade
the public of its cause, impairing its ability to use one of its most effective
bargaining strategies in the course of a lawful strike. In our view, this
infringement of the right to freedom of expression is disproportionate to the
government’s objective of providing individuals with control over personal
information that they expose by crossing a picketline.
¬ This conclusion does not require that we condone all of the Union’s
activities. The breadth of PIPA’s restrictions makes it unnecessary to
examine the precise expressive activity at issue in this case. It is enough to
note that, like privacy, freedom of expression is not an absolute value and
both the nature of the privacy interests implicated and the nature of the
expression must be considered in striking an appropriate balance. To the
extent that PIPA restricted the Union’s collection, use and disclosure of
personal information for legitimate labour relations purposes, the Act violates
s. 2(b) of the Charter and cannot be justified under s. 1.”
9

Oracle America, Inc. v Google Inc. 2014 WL
1855277 (CAFC May 9, 2014)
“Because we conclude that the declaring
code and the structure, sequence, and
organization of the API packages are
entitled to copyright protection, we
reverse the district court’s copyrightability
determination with instructions to
reinstate the jury’s infringement finding as
to the 37 Java packages. Because the
jury deadlocked on fair use, we remand
for further consideration of Google’s fair
use defense in light of this decision.”
10

SAS Institute Inc v World Programming Ltd
[2013] EWCA Civ 1482 (21 November 2013)
¬ “The court did not itself define what it meant by "functionality"; and in those
circumstances there is no reason to suppose that it meant anything different
from the way in which the Advocate-General defined the word. Moreover, at
[40] it specifically approved what the Advocate-General had said at [57] of
his opinion:
¬ "… to accept that the functionality of a computer program can be
protected by copyright would amount to making it possible to
monopolises ideas, to the detriment of technological progress and
industrial development.“
¬ It will be recalled that in [39] the court had discussed (a) the functionality of a
computer program, (b) the programming language and (c) the format of data
files used in a computer program. By contrast in it considered only (b) and
(c). One must infer, therefore, that the court considered that the functionality
of a computer program could not be protected under the Information Society
Directive. So I do not think that this carries SAS Institute's argument further.”
11

CASL Order in Council 81000-2-1795 (SI/TR)
¬ “His Excellency the Governor General in Council, on the recommendation of the
Minister of Industry, pursuant to section 91 of An Act to promote the efficiency
and adaptability of the Canadian economy by regulating certain activities that
discourage reliance on electronic means of carrying out commercial activities,
and to amend the Canadian Radio-television and Telecommunications
Commission Act, the Competition Act, the Personal Information Protection and
Electronic Documents Act and the Telecommunications Act ("the Act"),
chapter 23 of the Statues of Canada, 2010, fixes
¬ July 1, 2014 as the day on which sections 1 to 7, 9 to 46, 52 to 54, 56 to 67 and
69 to 82 of the Act, subsections 12(2) and 12.2(2) of the Personal Information
Protection and Electronic Documents Act, as enacted by section 83 of the Act,
subsection 86(2), section 88 and subsection 89(1) of the Act come into force;
¬ January 15, 2015 as the day on which section 8 of the Act comes into force; and
¬ July 1, 2017 as the day on which sections 47 to 51 and 55 of the Act come into
force.”
12

BILL S-4 – An Act to amend PIPEDA
¬ “6.1 For the purposes of clause 4.3 of Schedule 1,
the consent of an individual is only valid if it is
reasonable to expect that an individual to whom the
organization’s activities are directed would
understand the nature, purpose and consequences
of the collection, use or disclosure of the personal
information to which they are consenting.”
¬ Data breach notification obligations and penalties.
13

State of Indiana v. IBM 2014 WL 561658 (Ind.
Ct. App. Feb 13, 2014)
¬ Was the State entitled to terminate a 10 year $1.3 billion MSA for material breach?
¬ MSA § 1.4, entitled Construction and Interpretation, provided that the agreement
"shall be" construed in a manner consistent with the Policy Objectives:
¬ (5) In the event of any uncertainties regarding the interpretation of any
particular provision or term used in this Agreement, or in the event of any
ambiguity, vagueness or inconsistency therein or thereof, such provisions and
terms shall be read in a manner consistent with the Policy Objectives. In all
events, the provisions and terms of this Agreement shall be interpreted with a
view toward achieving those objectives. Notwithstanding the foregoing, in no
event shall the Policy Objectives change or expand Vendor's obligations
hereunder unless expressly agreed to by the Parties pursuant to a Change.
¬ “The State may terminate this Agreement, in whole or in part, for cause in any of
the following circumstances… a breach by Vendor of this Agreement which is
material considering this Agreement as a whole occurs which cannot reasonably
be cured by Vendor within thirty (30) days after delivery of the Termination Notice”.
15

Ct. App. Feb 13, 2014)
¬ “In determining whether any breach went to the heart of the contract, we find that
the core of the contract is identified in the following "Policy Objectives" in the
MSA:
¬ The overarching policy objectives of the Modernization Project and this
Agreement are (i) to provide efficient, accurate and timely eligibility
determinations for individuals and families who qualify for public assistance,
(ii) to improve the availability, quality and reliability of the services being
provided to Clients by expanding access to such services, decreasing
inconvenience and improving response times, among other improvements,
(iii) to assist and support Clients through programs that foster personal
responsibility, independence and social and economic self-sufficiency, (iv) to
assure compliance with all relevant Laws, (v) to assure the protection and
integrity of Personal Information gathered in connection with eligibility
determination, and (vi) to foster the development of policies and procedures
that underscore the importance of accuracy in eligibility determinations,
caseload integrity across all areas of public assistance and work and work-
related experience for Clients in the Programs…”
16

Ct. App. Feb 13, 2014)
¬ “…the essence of the Modernization Project was to provide and expand
access to services for welfare recipients in a timely, reliable, and efficient
manner within federal guidelines, to discourage fraud, and to increase work-
participation rates—all of which were problems that plagued the earlier
system. Contrary to the trial court's implication in Conclusion No. 100, whether
IBM materially breached the contract does not require balancing the number
of benefits the State received versus the number of performance standards
that IBM failed. Rather, the issue is whether any breach went to the essence
of the contract—to provide and expand access to services for welfare
recipients in a timely, reliable, and efficient manner within federal guidelines,
to discourage fraud, and to increase work-participation rates…
¬ We find that the heart of this contract was to provide services to the poor in a
way that complied with federal law. In this respect IBM's performance, as the
trial court explained, "consistently missed the mark." This substandard
performance by IBM, $437 million and 36 months later, went to the essence of
this contract.”
17

Ct. App. Feb 13, 2014)
¬ Friedlander J, (in dissent) “I believe the trial court applied the correct standard in
determining that IBM did not materially breach the Master Services Agreement
(MSA)…
¬ The MSA itself requires evaluating a breach for materiality by considering it vis-à-
vis the MSA "as a whole.“… Indeed, it seems to me that performance under a
contract of this breadth and complexity, whose goals and desired outcomes
include some that are not susceptible to quantitative measurement, can be
measured only in this manner, i.e., by considering the nature and extent of the
nonconforming performance in the context of the entirety of what is required under
the contract. The Majority's approach, on the other hand, permits a finding of
material breach, with the attendant harsh results to the breaching party, upon the
finding of "any breach [that] went to the essence of the contract", which is to say in
the present case any breach that affects the provision and expansion of access to
services for welfare recipients in a timely, reliable, and efficient manner. It seems
to me that, in view of the scope and breadth of the services IBM was required to
perform under the contract, such a vigorous definition of "material breach" doomed
from the beginning IBM's effort to avoid committing a material breach.”
18

Ct. App. Feb 13, 2014)
¬ Was IBM entitled to $40 million in assignment fees or were they a penalty?
¬ “We agree with the trial court and IBM that these assignment fees were the
price to which the State agreed to purchase IBM's interest in the
subcontracts. The State paid the $40 million assignment fee to IBM in
consideration for the State accruing the legal right to assume IBM's
subcontracts…
¬ Based on the benefits the State received in assuming IBM's subcontracts
and the conduct of the State both during the negotiations of the MSA and
after, we agree with the trial court that the assignment fees represent value
to the State in the ability to assume these subcontracts. Because there was
a measurable benefit conferred upon the State under such circumstances,
the State's retention of the benefit would be unjust. IBM is therefore entitled
to $40 million in assignment fees notwithstanding a finding of material
breach.”
19

Ct. App. Feb 13, 2014)
¬ Was IBM entitled to payment of $43.4 million in deferred fees?
¬ (1) In the event of a Termination of this Agreement for any reason (other than
a Termination by expiration), the State shall pay Vendor, to the extent
applicable, the charges set forth in Sections 16.6.6(2) and 16.6.6(3)(F)
below. In the event of a Termination of this Agreement for any reason (other
than on expiration or upon a Termination as set forth in Sections 16.3.1
[Termination for Cause]… in any of which events, Vendor shall not be
entitled to Early Termination Close Out Payments), the State shall pay
the Early Termination Close Out Payments set forth in Section 16.6.6(3),
16.6.6(4) and 16.6.6(5) and subject to Section 16.6.6(6) if applicable.
¬ MSA § 16.6.6(3) then provided: “Vendor's and its Subcontractors' Early
Termination Close Out Payments (as applicable and without duplication)
shall be as follows: (F) Vendors and its Subcontractors' unamortized balance
of the Deferred Fees, as set forth in Schedule 24 [Deferred Fees].”
20

State of Indiana v. IBM 2014 WL 561658
(Ind. Ct. App. Feb 13, 2014)
¬ “We agree with the trial court's interpretation of Section 16.6.6(1) that Deferred Fees are
not payable to IBM in the event that the MSA was terminated for cause. The contract is
ambiguous because the first sentence of Section 16.6.6(1) required the State to pay
IBM the fees in Section 16.6.6(3)(F), which are Deferred Fees. Id. at 702. However, in
the second sentence, the contract stated that if the State terminated for cause..., it
would not be required to pay any of the payments in Section 16.6.6(3), which included
Deferred Fees.
¬ We read the first sentence's qualifying phrase "to the extent applicable" to refer to
termination situations in which IBM was not entitled to Deferred Fees. The second
sentence clarified situations when the specified Deferred Fees were applicable—
namely, that such fees were payable unless there was a termination for cause, an
insolvency event, wrongful conduct, or a termination by mutual agreement. In other
words, the first sentence of this section applied to situations not listed in the second
sentence, such as termination for convenience…Because we have concluded that there
was a material breach, the State terminated for cause, and the contract does not require
payment of Deferred Fees upon termination for cause, IBM is not entitled to Deferred
Fees.”
21

Fujitsu Services Ltd v IBM United Kingdom
Ltd [2014] EWHC 752 (TCC) (21 March 2014)
¬ "Neither Party shall be liable to the other under this Sub-Contract for loss of profits, revenue,
business, goodwill, indirect or consequential loss or damage…." ("the basic exclusion").
¬ The workshare arrangements under the Sub-Contract may have been a very important part
of the agreement and the Sub-Contract may have been a significant one in terms of prospect
and length. But there may have been very good commercial reasons for deciding to exclude
liability on both sides from a loss of profits claim for breach of the workshare arrangements
as well as for breach of the other significant arrangements in the Sub-Contract…
¬ Commercial parties are entitled to and do rely on commercial "mores"; they can choose to
rely on trust and to prefer not to expose themselves or each other to litigation in due course -
for sound commercial and professional reasons.
¬ Here, each party chose consciously to release the other from potentially very significant
liabilities in the event of a breach of contract (or any other breach), subject to certain agreed
exceptions.
¬ “I conclude that… any liability on the part of IBM for damages (or equitable compensation) on
the workshare, change control and money value claims is excluded by virtue of clause 20.7.
Those claims are claims for loss of profits and/or loss of revenue and/or loss of business
within the meaning of clause 20.7 and do not fall within any of the specific exceptions
provided for”…
22

¬ "20.4 Subject to Clauses 20.6 and 20.8, PwC's liability to Fujitsu arising
under any indemnity or otherwise under or in relation to this Sub-Contract,
whether in contract, tort, by statute or otherwise and whether or not arising
from any negligence on the part of PwC or any of their agents or employees
shall be subject to the following limits:…
¬ c) subject to Clauses 20 4(d) and 20.8, in respect of any Claims or
losses arising PwC's aggregate liability to Fujitsu arising under this Sub-
Contract in each Contract Year shall be limited to £5 million for all events
or failures giving rise to such Claims or losses;
¬ d) notwithstanding the cap set out in Clause 20.4(c), PwC's overall
aggregate liability for all Claims or losses arising under this Sub-Contract
shall be limited, subject to Clause 20.8, to £10 million for all events or
failures giving rise to such Claims or losses."
23

“I conclude that :
¬ a) any liability on the part of IBM for damages (or equitable
compensation) on the workshop, control change and money value
claims would be subject to the limitations of liability set out in clause
20.4 (c) and (d);
¬ b) any liability on the part of IBM on the account claims is subject to the
limitations of liability set out in clause 20.4(c) and (d).
¬ This construction is what a reasonable person, being someone with all
the background knowledge which would reasonably have been
available to the parties in the situation in which they were at the time in
2002 (and for the avoidance of doubt in 2008) would have understood
the parties to have meant.”
24

AB v CD [2014] EWCA Civ 229 (06 March
2014)
¬ In granting injunctions should the presence of a limitation of liability clause be
disregarded assuming that those damages would be an adequate remedy as they had
been agreed to by the parties?
¬ Lord Justice Underhill “The primary obligation of a party is to perform the contract. The
requirement to pay damages in the event of a breach is a secondary obligation, and an
agreement to restrict the recoverability of damages in the event of a breach cannot be
treated as an agreement to excuse performance of that primary obligation. I share…the
position…that, even where a provision limited the victim of a breach to damages which
bore no relation to its loss, those damages had nevertheless to be regarded an adequate
remedy: …The rule – if "rule" is the right word – that an injunction should not be granted
where damages would be an adequate remedy should be applied in a way which reflects
the substantial justice of the situation…
¬ the fact that the restriction in question was agreed may, depending on the circumstances
of the case, be a relevant consideration – as may the scale of any shortfall and the
degree of risk of it occurring.”
25

AB v CD [2014] EWCA Civ 229 (06 March
2014)
¬ Lord Justice Ryder: “Injunctive relief is a remedy available to the court to give
effect to commercial expectations where it is in the interests of justice that
agreed obligations should continue to be binding on the parties, whether that
be for an interim period or the term of the contract. The construction of the
contract clause in the context of the description of legal principle set out by my
Lord has the effect of tending to support rather than undermine parties who
have entered or seek to enter into a contract which contains their commercial
expectations... For that reason, I favour re-casting the question to be asked on
an application for injunctive relief, which is: "Is it just in all the circumstances
that a [claimant] be confined to his remedy in damages?"
¬ Lord Justice Laws: “Where a party to a contract stipulates that if he breaches
his obligations his liability will be limited or the damages he must pay will be
capped, that is a circumstance which in justice tends to favour the grant of an
injunction to prohibit the breach in the first place.”
26

Peracomo Inc. v. TELUS Communications
Co., 2014 SCC 29
¬ Meaning of “wilful misconduct” in an exclusion of liability.
¬ “In short, wilful misconduct includes not only intentional wrongdoing but also
other misconduct committed with reckless indifference in the face of a duty to
know.”
¬ “While the threshold to break liability under the Convention requires intention or
recklessness with knowledge that the loss will probably occur, wilful misconduct
under the Marine Insurance Act does not require either intention to cause the
loss or subjective knowledge that the loss will probably occur. It requires, in the
context of this case, simply misconduct with reckless indifference to the known
risk despite a duty to know. The trial judge’s reasons, read in light of the record,
show that at the time he cut the cable Mr. Vallée, who had a duty to know better,
subjectively adverted to the risk that the cable might be live and decided to cut it
anyway on the sole basis of some handwriting that he had seen for a few
seconds on a map on a museum wall — a map which was not a marine chart
and was of unknown origin or authenticity. Cutting the cable in those
circumstances constitutes wilful misconduct as that term is defined in all of the
authorities to which I have referred.”
27

Peracomo Inc. v. TELUS Communications
Co., 2014 SCC 29
¬ Personal liability of officers and directors.
¬ “The trial judge, upheld by the Federal Court of Appeal, found that Mr. Vallée was
personally liable for breaching his duty of care to the Telus respondents: para. 49. He
held that Peracomo was also liable for the losses both vicariously and personally. Mr.
Vallée was the directing mind and alter ego of Peracomo: para. 50. The court of
appeal cited ADGA Systems International Ltd. v. Valcom Ltd. 1999 CanLII 1527 (ON
CA), (1999), 43 O.R. (3d) 101 (C.A.), leave to appeal refused, [2000] 1 S.C.R. xv, for
the proposition that corporate officers and directors may be held liable in their personal
capacity where they negligently cause property damage in the course of their
corporate duties: para. 43.
¬ I agree with these conclusions. As the Telus respondents point out, corporate
personality is not a relevant consideration in this case since Mr. Vallée was personally
negligent in cutting the cable. The company is liable as a result of his acts, not the
other way around. I would dismiss this ground of appeal.”
28

XY, LLC v. Zhu, 2013 BCCA 352
¬ Are licensee employees liable to the licensor for their tortious acts?
¬ “it appears to be the law in Canada that as long as tortious conduct on the
part of an employee or agent of a corporation (or any other employer) is
properly pleaded and proven as an “independent” tort by the employee or
agent, the wrongdoer can be held personally liable notwithstanding that he or
she may have been acting in the best interests of (and at the behest of) the
employer or principal. I see no reason in principle or policy why such liability
should be restricted to cases involving physical damage (as Said v. Butt may
have suggested in 1920), or to claims in negligence (as referred to in London
Drugs, Hildebrand and Neilson.) Certainly the Ontario Court of Appeal did
not so restrict it in ADGA…”
¬ In any event it is clear that fraud or fraudulent conduct has historically fallen
into an established category in which personal liability has been imposed on
agents and employees. It is sufficient in the case at bar to rely on this
exception, although the acts of the Personal Defendants were properly
pleaded as amounting to civil conspiracy and in this sense constituted a tort
that was independent of that alleged against JingJing.”
29

Innovate Technology Solutions, L.P. v
Youngsoft, Inc. 418 SW 3d 148 (Ct.App.Tex.2013)
¬ Enforceability of following disclaimer:
¬ Notwithstanding anything contained elsewhere in this Agreement and
under any circumstance, for any reason whatsoever, YS shall not be
liable for any incidental, ancillary, direct, indirect, special or
consequential damages, including but not limited to lost profits, whether
in tort or contract, and based on any theory of liability.
¬ “…interpreting the Agreement to mean (in Youngsoft's words) that "Innovate
is not entitled to recover any damages from Youngsoft under any
circumstances, notwithstanding anything to the contrary..." renders the
Agreement illusory, void, and unenforceable”…If Youngsoft is completely
insulated from any damage claims from Innovate, it effectively retains the
option of discontinuing performance at any time.”
30

IN RE IPHONE 4S CONSUMER LITIGATION,
2013 WL 3829653 (N.D.Cal. Jul. 23, 2013)
¬ Is Apple liable for implied warranty of merchantability for Siri features in
Iphone?
¬ “Apple argues that this claim is barred because it disclaimed the implied
warranty of merchantability in the iPhone 4S's one-year hardware warranty
and in the iPhone software license agreement….
¬ Apple argues that a disclaimer was provided to customers within the
packaging of the iPhone 4S and that Plaintiffs could have returned their
iPhones within its thirty day return period after they had discovered and
reviewed the warranty, if they did not want to consent to its limitations.
There is some authority within this district that supports that the disclaimer
need not be provided prior to purchase, if the purchasers “were able to
review the warranty upon purchase and to return the product if they were
dissatisfied with the warranty's limitations.”
31

IN RE IPHONE 4S CONSUMER LITIGATION,
2013 WL 3829653 (N.D.Cal. Jul. 23, 2013)
¬ “Unlike express warranties, which are basically contractual in nature, the
implied warranty of merchantability arises by operation of law.... [I]t provides
for a minimum level of quality.” A plaintiff must demonstrate that the product
“did not possess even the most basic degree of fitness for ordinary use.”
This means that Plaintiffs must show “more than that the alleged defect was
‘inconvenient’ ” but rather that the products were unfit for their ordinary
purpose. Given the acknowledgment that Siri could be used as an assistant
for at least basic purposes, Plaintiffs have not alleged sufficiently that the
function was unusable or that it did not have the most basic degree of
fitness.
¬ See also, IN RE IPHONE 4S CONSUMER LITIGATION, (N.D.Cal. Feb 14,
2014) (express warranty claims dismissed)
32

IN RE SONY GAMING NETWORKS AND CUSTOMER DATA
SECURITY BREACH LITIGATION, 2014 WL 223677 (S.D.Cal.
2014)
¬ Enforceability of express and implied warranty claims that Sony would provide
adequate network security to protect personal information.
¬ “…the PSN User Agreement states: "Except as otherwise required by
applicable law, this Agreement shall be construed and interpreted in
accordance with the laws of the State of California applying to contracts fully
executed and performed within the State of California." Similarly, the SOE
User Agreement states: "This Agreement is governed in all respects by the
substantive laws of the State of California and of the United States of America."
Therefore, based on the unambiguous language set forth above, the Court
finds each of Plaintiffs' breach of warranty claims is potentially subject to
dismissal under the choice-of-law clauses, subject only to the enforceability of
the provisions under applicable law…
¬ Therefore, based on the above, the Court finds the choice-of-law clauses in the
PSN and SOE User Agreements enforceable and each of the warranty claims
not alleged under California law should be dismissed.”
33

IN RE SONY GAMING NETWORKS AND CUSTOMER DATA
SECURITY BREACH LITIGATION, 2014 WL 223677 (S.D.Cal.
2014)
“Therefore, based on the disclaimer and admonitory language in the
PSN User Agreement and the PSN Privacy Policy, the Court finds the
language clear and conspicuous. Read in conjunction, both documents
explicitly disclaimed any and all claims arising under the implied
warranty of merchantability, disclaimed any and all claims arising under
the implied warranty of fitness for a particular purpose, stated in all caps
that Sony Online Services would be provided "AS IS" and "AS
AVAILABLE," and informed consumers that Sony was not warranting
the security of consumer personal information transmitted to Sony via
the network.”
34

Convolve, Inc v Compaq Computer Corp, 527
Fed.Appx. 910 (CAFC. 2013), cert. denied 134 S.Ct. 801
¬ Could plaintiffs pursue a trade secret misappropriation claim where
disclosure process in NDA not followed.
¬ “The plain language of the Convolve-Seagate NDA unambiguously requires
that, for any oral or visual disclosures, Convolve was required to confirm in
writing, within twenty (20) days of the disclosure, that the information was
confidential. Paragraph 7 of the Convolve-Seagate NDA provides that, for
"any oral or visual disclosures," the disclosing party must (1) designate the
information as confidential at the time of disclosure and (2) confirm "in a
writing delivered within twenty (20) days to the Recipient which provides
clear notice of the claim of confidentiality and describes the specific
information disclosed." The intent of the parties, based on this language, is
clear: for an oral or visual disclosure of information to be protected under the
NDA, the disclosing party must provide a follow-up memorandum. And, we
see no error in the district court's conclusion that Convolve failed to provide
this written follow-up memorandum with respect to each of these ASTIs.”
35

Convolve, Inc v Compaq Computer Corp, 527
Fed.Appx. 910 (CAFC. 2013), cert. denied 134 S.Ct. 801
¬ “If the parties have contracted the limits of their confidential relationship
regarding a particular subject matter, one party should not be able to
circumvent its contractual obligations or impose new ones over the other via
some implied duty of confidentiality.
¬ Indeed, the CUTSA itself compels such a result. The CUTSA states that
misappropriation occurs when a trade secret is acquired under
circumstances giving rise to a duty to maintain its secrecy. Cal. Civ. Code §
3426.1(b). Convolve disclosed its alleged trade secrets to Seagate pursuant
to the provisions of the NDA. Therefore, the "circumstances" giving rise to a
duty to maintain the secrecy of the disclosed information is dictated by the
terms of the NDA. Convolve did not follow the procedures set forth in the
NDA to protect the shared information, so no duty ever arose to maintain
secrecy of that information. As such, Convolve's argument must fail.”
¬ See also, BE, IN, Inc v Google Inc 2013 U.S.Dist. LEXIS 147047 (N.D.Cal.
Oct. 13, 2013) (Common law trade secret claim against Google denied
where there was an NDA.)
36

Aderhold v. Car2go NA, LLC, 2014 WL
794802 (W.D. Wash. 2014)
¬ Alleged violation of the Telephone Consumer Protection Act (TCPA) which
prohibits sending SMS messages made with the prior express consent of the
called party using any automated telephone dialing system. The message
asked the consumer to enter an activation code to complete the registration
process.
¬ “Mr. Aderhold urges…that "[e]xpress consent is `consent that is clearly and
unmistakably stated.'" (quoting Black's Law Dictionary 323 (8th ed. 2004)).
He argues that because the consumer in Satterfield had to take the
affirmative step of checking a box to request promotional material, a similar
affirmative step is required in every case. As he puts it, express consent
must not only be clear and unmistakable, it must be affirmatively "stated.”
37

794802 (W.D. Wash. 2014)
¬ “Some district courts take a broad view of "prior express consent,"
suggesting that anyone who provides a cellular phone number to a
business consents to the business's use of the number to contact him
or her…
¬ Several courts have found that sending a text message to an entity for
the purpose of opting out of receiving future text messages is
nonetheless consent to receive a final text message confirming the
optout request…
¬ The court in Emanuel v. Los Angeles Lakers, Inc. found that when a
consumer sends a text message requesting a service, she consents
to receipt of a text message confirming receipt of the request…
38

794802 (W.D. Wash. 2014)
“Even if car2go had made no disclosures at all about the purposes for which it
would use Mr. Aderhold's cellular number, it defies logic to contend that he did
not consent to be contacted regarding his membership application. When
people provide their telephone numbers in commercial transactions, it would be
odd to imagine that they do not consent to being contacted for purposes of
completing that transaction. Could a person who provided a telephone number
to a delivery service seriously contend that she had not consented to be
telephoned by the service to inform her that her package was en route? Could a
person who provided a telephone number to a mechanic claim that she did not
consent to be called (or texted) when her car was repaired? According to Mr.
Aderhold, if the delivery service and mechanic used an autodialer to make those
calls, then they broke the law. The court is confident that Congress did not
intend that result when it passed the TCPA. And although Mr. Aderhold is
apparently an exception, the court doubts that most customers would feel that
their privacy had been invaded by such calls. All of these considerations
strengthen the court's conclusion that Mr. Aderhold consented to the text
message he received.”
39

Apple Inc. v Motorola, Inc. 2014 WL 1646435
(CAFC, 2014)
Per Reyna J., “To the extent that the district court applied a per se rule that
injunctions are unavailable for SEPs, it erred. While Motorola's FRAND commitments
are certainly criteria relevant to its entitlement to an injunction, we see no reason to
create, as some amici urge, a separate rule or analytical framework for addressing
injunctions for FRAND-committed patents. The framework laid out by the Supreme
Court in eBay, as interpreted by subsequent decisions of this court, provides ample
strength and flexibility for addressing the unique aspects of FRAND committed
patents and industry standards in general. A patentee subject to FRAND
commitments may have difficulty establishing irreparable harm. On the other hand,
an injunction may be justified where an infringer unilaterally refuses a FRAND royalty
or unreasonably delays negotiations to the same effect... To be clear, this does not
mean that an alleged infringer's refusal to accept any license offer necessarily
justifies issuing an injunction. For example, the license offered may not be on
FRAND terms. In addition, the public has an interest in encouraging participation in
standard-setting organizations but also in ensuring that SEPs are not overvalued.
While these are important concerns, the district courts are more than capable of
considering these factual issues when deciding whether to issue an injunction under
the principles in eBay.”
40

Apple Inc. v Motorola, Inc. 2014 WL 1646435
(CAFC, 2014)
“Applying those principles here, we agree with the district court that Motorola is not
entitled to an injunction for infringement of the '898 patent. Motorola's FRAND
commitments, which have yielded many license agreements encompassing the
'898 patent, strongly suggest that money damages are adequate to fully
compensate Motorola for any infringement. Similarly, Motorola has not
demonstrated that Apple's infringement has caused it irreparable harm.
Considering the large number of industry participants that are already using the
system claimed in the '898 patent, including competitors, Motorola has not provided
any evidence that adding one more user would create such harm. Again, Motorola
has agreed to add as many market participants as are willing to pay a FRAND
royalty. Motorola argues that Apple has refused to accept its initial licensing offer
and stalled negotiations. However, the record reflects that negotiations have been
ongoing, and there is no evidence that Apple has been, for example, unilaterally
refusing to agree to a deal. Consequently, we affirm the district court's grant of
summary judgment that Motorola is not entitled to an injunction for infringement of
the '898 patent.”
41

Oracle USA, Inc. v Rimini Street, Inc., 2014
WL 576097 (D.Nev. Feb 13, 2014)
¬ Was Rimini entitled to copy Oracle software onto its own computer systems
to provide software support services to its customers by relying on their
EULAs?
¬ ”Oracle's initial argument is premised on the flawed assumption that the
rights to use and install the licensed software are restricted and tied solely to
the specific software installation media delivered by Oracle, and is in direct
contention with the express language of the City of Flint's license as well as
federal copyright law. In the City of Flint's license, Oracle granted the City of
Flint "a perpetual, non-exclusive, non-transferable license to use the licensed
Software.“…"Software" is defined as "all or any portion of the then
commercially available global version(s) of the binary computer software
programs." Nowhere does the licensing agreement require the City of Flint to
install the licensed software from the specific installation media provided by
Oracle. Rather, the license grants the City of Flint the right to install and use
"version(s)" of the licensed software. This is separate from, and in contrast
to, a right to install and use only the provided software installation media.”
43

WL 576097 (D.Nev. Feb 13, 2014)
¬ “The court has reviewed the documents and pleadings on file in this matter
and finds that the plain, unambiguous language of Section 1.2(b) does not
expressly authorize Rimini to make copies of the licensed software. First, the
plain language of Section 1.2(b) provides that only the City of Flint may make
copies of the software. ("[the City of Flint] may [] make a reasonable number
of copies . . ."). Nowhere does this provision authorize Rimini, as a third-
party, to make a copy of the licensed software.
¬ Second, Section 1.2(b) authorizes copying of the software only for three very
limited bases: (1) a use in accordance with the terms of the license; (2)
archival and back-up purposes; and (3) disaster recovery testing
purposes. Upon review of Rimini's use of the development environments
associated with the City of Flint, the court finds that none of the
environments were created for archival, emergency back-up, and/or disaster
recovery purposes. Rather, the undisputed evidence establishes that these
development environments were used to develop and test software updates
for the City of Flint and other Rimini customers with similar software
licenses.”
44

WL 576097 (D.Nev. Feb 13, 2014)
¬ Section 1.2(c) states that "[the City of Flint] may [] modify or merge the
Software with other software." Rimini argues that because Section 1.2(c)
allows for the City of Flint to modify the software, this provision necessarily
authorizes Rimini to make a number of copies of the software to facilitate
such modifications as a "use in accordance with the terms" of the license
under Section 1.2(b)(i).
¬ However, the court finds that the right to modify the software pursuant to
Section 1.2(c) does not authorize Rimini to make copies of the software.
First, the court notes, once again, that the right to modify the software is
granted solely to the City of Flint, and not to any third-party. Id. ("[the City of
Flint] may [] modify . . . the software . . ."). Second, the right to modify the
software is a separate and distinct right from from the right to reproduce the
software…Thus, a grant of the right to modify the software does not
automatically grant a right to reproduce that software.”
45

WL 576097 (D.Nev. Feb 13, 2014)
¬ “Rimini argues that Section 14.2 expressly authorizes third-party software
support service providers, like itself, to make copies of the licensed software
on its systems in order to carry out contracted support services with the City
of Flint. The court disagrees.
¬ …the plain, unambiguous language of Section 14.2 only allows for the City of
Flint to provide "access to and use of the Software." The right to access and
use the licensed software is separate from a right to reproduce or copy the
software, and there is no evidence before the court that Rimini, as a third
party service provider, cannot perform its contracted services without having
its own copy of the software on its own systems. Further, unlike other license
provisions, the word "copy" is not found anywhere in Section 14.2. Therefore,
the court finds that the plain language of Section 14.2 does not authorize
copying of the licensed software.”
46

Taxes of Puerto Rico, Inc v Taxworks, Inc.
2014 U.S.Dist. LEXIS 37765 (D.P.Rico. 2014)
¬ Enforceability of install wrap license.
¬ YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY
WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.LICENSOR IS
WILLING TO LICENSE THE SOFTWARE TO YOU ONLY ON THE
CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS
AGREEMENT. YOU PROVIDE YOUR CONSENT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT BY INSTALLING, LOADING OR
OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO ALL
OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE
THE SOFTWARE.
¬ “If a "shrinkwrap" license agreement, where any assent on the part of the
consumer is implicit, is valid, then it must logically follow that a "clickwrap" license
agreement, where the assent is explicit, is valid..Here, the plaintiffs explicitly
accepted the "clickwrap", or user agreement, when they clicked on the prompt
stating "Accept & Install.“”
47

Tremblay c. Canada (Orio Canada Inc).,
2013 CAF 225
¬ “Any development done for Orio Canada Inc. shall become the exclusive property thereof
and may not therefore be marketed or reused by Service Informatique Professionnel or any
other party.”
¬ “Thus, the case law provides unanimously that we can not oppose the holder of a copyright
assignment or exclusive licensee who is not evidenced by a writing signed by the holder of
the right in question …
¬ However, these decisions do not deal with a case where the owner of the copyright
recognized in court to have consented to the transfer of ownership of the right in question. It
seems to me an exaggerated formalism that make ineffective against a transferor a transfer
clause of copyright that he has written himself and recognizes court as governing its
relations with the transferee, and this for the simple reason that it is not signed. As I
mentioned earlier, the purpose of subsection 13 (4) and (7) of the Act, copyright is to protect
the owner of the copyright assignment against a law that is not granted clearly. Where the
transferee recognizes himself in court the assignment clause which governs its reports, the
purpose of the Act is about me filled.”
¬ Orio, however, has not made a cross-appeal against the decision of the judge trying the
assignment of copyright is unenforceable to the caller. In these circumstances, it is not for
this Court to reform this aspect of the judge's decision.” (Google translate)
48

Tremblay c. Canada (Orio Canada Inc).,
2013 CAF 225
¬ ”As to the implied license to use, I see no error in the judge's decision
wanting that, given the circumstances, the appellant consented not only an
implied license marketing SAM modified, but also to that can be changed by
software Orio to improve marketing. In this regard, the decision of the
Supreme Court of Canada in Netupsky c. Dominion Bridge , [1972] SCR 368
appears to me analogous to the present case…
¬ There is no doubt in my opinion that the parties had in mind that the modified
SAM could not only be marketed, but that this program could also be future
improvements at the request of Orio, and that these improvements could be
made either by calling or by a third party designated by Orio. Explicitly
recognizing that "[a] ny development is Orio Canada inc. become the
exclusive property "thereof, the appellant was in fact waived exclusivity on
the development of all future enhancements audit program. The implied
license arising from all relationships between the parties therefore allows
Orio to copy the source code of SAM modified to do rework by third
parties. The trial judge therefore did not err in so ruling.” (Google translate)
49

Your Response Ltd v Datateam Business Media
Ltd [2014] EWCA Civ 281 (14 March 2014)
¬ Must a database manager return data on contract termination and can it exercise a common
law possessory lien over the database?
¬ “I would hold that the data manager was not entitled to exercise a common law lien on the
database…it must have been implicit in the contract that when it came to an end the data
manager was under an obligation to send the publisher by electronic means a copy of the
database in its latest form…It was therefore in breach of contract in refusing to do so, unless
the contract impliedly gave it a right to withhold that information from the publisher and to
exclude the publisher from its systems until it had received payment of any outstanding fees.
For my part I do not think that there is a sufficient basis for implying a term of that kind…
¬ Although in former times the law may have looked with favour on possessory liens as
reflecting a form of natural equity, the parties to a contract of the kind under consideration in
this case are free to make express provision for their rights and obligations on termination of
their relationship and an extension of the right of self-help is to that extent less justifiable. In
any event, for the reasons I have given I do not think it is open to us to take that course,
even if we wished to.”
¬ Information cannot be property. See also, Fairstar Heavy Transport NV v Adkins & Anor
[2013] EWCA Civ 886 (19 July 2013)
50

Magill v. Expedia Inc., 2014 ONSC 2073
¬ Did Expedia breach a contract by failing to disclose the details of its Tax recovery Charges
and Service Fees.
¬ The Website Terms of Use state: “By accessing or using this Website in any manner, you
agree to be bound by the [Website Terms of Use]. Please read the Agreement carefully.”
¬ “While completing the booking process, a customer wanting more information may choose
to click on “Terms of Use” hyperlinks to open new windows containing the Website Terms
of Use. If the customer accesses the link, he or she will find the following description or
explanation of the Tax Recovery Charge and the Service Fees:
¬ The tax recovery charge on hotel accommodations is a recovery of the estimated transaction taxes
(e.g. sales and use, occupancy, room tax, excise tax, value added tax, etc.) that Expedia pays to
the hotel supplier in connection with your hotel reservations. … The actual tax amounts paid
by Expedia to the hotel suppliers may vary from the tax recovery charge amounts, depending upon
the rates, taxability, etc. in effect at the time of the actual use of the hotel by our customers.
¬ The service fees compensate Expedia for its costs in servicing your travel reservation. Our service
fees vary based on the amount and type of hotel reservation.
¬ Expedia has no way of knowing whether a particular customer actually accessed the
Website Terms of Use. Although the booking path specifies that by completing the
booking, the customer has agreed to having read and accepted the Website Terms of Use,
it is possible for customers to complete bookings and enter into Reservation Contracts
without ever actually viewing the Website Terms of Use.”
52

¬ Did customers agree to Expedia’s Terms of Use by entering into reservation
contract?
¬ “Expedia’s first argument is that the language from the Terms of Use that explain the
Tax Recovery Charge and the Service Fees do not part of the contract, the
Reservation Contract, in which Expedia actually charges for “Taxes & Service Fees.”
¬ Expedia submits that the words from the Terms of Use are part of another contract;
i.e. the contract that governs the use of its website.
¬ With respect, Expedia’s first argument makes no sense. Taxes & Service Fees are
what Expedia charges as part of making hotel reservations and the question and
answer language explaining what are those charges is an obvious part of the
contract that makes those hotel reservations. Equally, the Terms of Use that are
referred to in the Question and Answer are an obvious part of the Reservation
Contract.
¬ I agree that the Terms of Use, standing alone, are a separate or discrete contract.
The Terms of Use standing alone provide a contract for customers who use the
website but who do not go on to make a hotel reservation. However, the Terms of
Use in that separate contract become terms of the Reservation Contract for those
customers that so make a Reservation Contract.”
53

¬ “The questions upon which this class action are based turn on the language of
the Terms of Use. More precisely, did Expedia breach the Reservation Contract
by: (1) not disclosing whether the Taxes Fee was charged on the Retail Rate or
the Wholesale Rate? (2) charging the Taxes Fee based on the Wholesale Rate?
(3) not breaking out the Taxes and Service Fee into its components; or (4) not
disclosing and by infusing a profit element into the Service Fee? The answer to
all these questions are matters of contract interpretation…
¬ In my opinion, as a matter of contract interpretation the answer to all of the four
questions set out above is “no”…
¬ The most straightforward explanation for why I agree with Expedia’s third and
fourth arguments is that there is no words in the Reservation Contract
expressing a promise by Expedia: (1) to disclose that the tax fee is charged on
the Retail Rate or Wholesale Rate; (2) to charge the tax fee of the Wholesale
Rate; (3) to disclose the tax charge and the service charge separately; and (4) to
not include a profit element in the services charge.”
54

Block v ebay, Inc 14 Cal. Daily Op. Serv.
3590 (9th.Cir.2014)
¬ Enforceability of term in user Agreement that stated "We are not involved in
the actual transaction between buyers and sellers“.
¬ The first statement — "We are not involved in the actual transaction between
buyers and sellers" — contains no promissory language… Rather, the
statement is simply a general description of how eBay's auction system
works. Although Block cites Lavi v. Pelican Investment Corp., 36 F. App'x
923 (9th Cir. 2002), and Multimatic, Inc. v. Faurecia Interior Systems USA,
Inc., 358 F. App'x 643 (6th Cir. 2009), in arguing that legal obligations can be
created through present-tense statements, these cases are
distinguishable. See Lavi, 36 F. App'x at 924 (holding, in a context in which it
was clear that the pertinent statements conveyed promises, a contract
describing the sale of land in the present tense intended the property to be
transferred in the future); Multimatic,358 F. App'x at 647-48 (interpreting a
confidentiality agreement protecting trade secrets each side "possesses" to
cover both pre-existing and future trade secrets).”
55

In re Zappos.com, Inc Customer Data Security
Breach Litigation 2013 WL 4830497(D.Nev.
Sep. 9, 2013)
“The Court also dismisses the contractual claims. Plaintiffs allege that
Zappos breached a contract to safeguard their data. But there is no
allegation of any express or implied contract. The only allegations
alleged to give rise to any contract are that customers agreed to pay
money for goods and that statements on Zappos's website indicated that
its servers were protected by a secure firewall and that customers' data
was safe. The first type of contract for the sale of goods is not alleged to
have been breached, and the unilateral statements of fact alleged as to
the safety of customers' data do not create any contractual obligations,
although if negligently or intentionally false, such statements can be the
basis of misrepresentation claims in tort. The Court dismisses the
contractual claims.”
56

In re: ONLINE TRAVEL COMPANY (OTC) HOTEL BOOKING
ANTITRUST LITIGATION 953 F.Supp.2d 713 (N.D.Tex. 2013)
¬ “In the case at bar, it was impossible to complete a transaction on the Travelocity
website in the absence of affirmative assent to the User Agreement. It is not, as
Plaintiffs argue, necessary for the User Agreement to have a "scroll through"
feature; the central issue is whether or not the users were "conspicuously
presented with the agreement prior to entering into a contract." In
the RealPage case, users attempting to install software updates were not
required to scroll through the clickwrap license agreement. The RealPage court
reasoned that the Barnett holding, which found a forum selection clause in a
clickwrap agreement enforceable, did not require a "scrollthrough" feature for the
contract to be valid, stating that "[i]t was [the user's] responsibility to read the
electronically-presented contract, and he cannot complain if he did not do
so." Id. (quoting Barnett, 38 S.W.3d at 204). Such reasoning is equally applicable
here. Since the User Agreement was conspicuously presented and Plaintiffs
assented to the User Agreement by clicking the "Accept" button to complete each
online transaction, it is a valid clickwrap agreement.”
¬ See also, Starke v Gilt Groupe, Inc (S.D.N.Y. Apr. 24, 2014) (enforcing clickwrap
where terms at link not read).
57

In re: ONLINE TRAVEL COMPANY (OTC) HOTEL BOOKING
ANTITRUST LITIGATION 953 F.Supp.2d 713 (N.D.Tex. 2013)
“Plaintiffs also argue that since Travelocity could at any time unilaterally
modify the User Agreement and substantially change or revoke the arbitration
clause, that clause, including its class action waiver, is illusory and
unenforceable. The Court disagrees. While it is true that "an arbitration
clause is illusory if one party can avoid its promise to arbitrate by amending
the provision or terminating it altogether," Carey v. 24 Hour Fitness, 669 F.3d
202, 205 (5th Cir. 2012) (quoting In re 24R, Inc., 324 S.W.3d 564, 567 (Tex.
2010)) "[t]he crux of this issue is whether [the promisor] has the power to
make changes to its arbitration policy that have retroactive
effect."Id. Travelocity's User Agreement states that "Travelocity may at any
time modify this User Agreement and your continued use of this site or
Travelocity's services will be conditioned upon the terms and conditions in
force at the time of your use." Unlike the clause in Carey, which was silent on
the issue of retroactivity, see Travelocity's clause explicitly precludes
retroactive application of any changes.”
58

5381 Partners LLC v Sharesale.com, Inc. 2013 WL
5328324, (E.D.N.Y., Sept. 23, 2013)
¬ “Plaintiff argues that it is not bound by the forum selection clause because the
Merchant Agreement never appeared on the screen during sign up and
activation. As to the fact that plaintiff had to click on a hyperlink to view the
Merchant Agreement (rather than view the agreement on the same page
where it had to indicate its assent to the terms), the Court agrees with the
Fteja court's analogizing of this situation to cruise tickets — plaintiff was
shown precisely where to access the Merchant Agreement before it agreed to
them, and it should have clicked on them in the same way that one is
expected to turn over a ticket to learn of its terms. Moreover, plaintiff was
required to click to activate its account, and the button plaintiff was required to
click appeared next to the statement, "By clicking and making a request to
Activate, you agree to the terms and conditions in the Merchant Agreement."
Thus, plaintiff had to click to denote its acceptance of the Merchant
Agreement, which contained the forum selection clause. In such
circumstances, "`[a] reasonably prudent offeree would have noticed the link
and reviewed the terms before clicking on the acknowledgement icon.'“
¬ See also, Zaltz v Jdate 952 F.Supp.2d 439 (E.D.N.Y.2013).
59

Rudgayzer V Google Inc. 2013 WL 6057988
(E.D.N.Y. NOV 15, 2013)
¬ Enforcement of Google’s forum selection clause in clickwrap for Gmail
related to Google’s alleged use of Gmail users’ public profiles in Buzz.
¬ ‘The forum-selection clause is enforceable. First, the forum-selection
clause was reasonably communicated to the plaintiffs. Google requires
all users, after seeing a screen listing the terms or a link to the terms,
to agree to the terms of use before creating an email account.
Agreements such as this — that require a user's assent as a
prerequisite for using the services and are known as "clickwrap"
agreements — are considered reasonably communicated.”
60

NEWELL RUBBERMAID INC. v. Storm,
(Del. Ct. Ch. Mar. 27, 2014)
“The Court concludes that Newell's method of seeking Storm's agreement to the
post-employment restrictive covenants, although certainly not the model of
transparency and openness with its employees, was not an improper form of
contract formation. Storm, to accept her RSUs, was directed to a screen which
informed her in several places that she was agreeing to the 2013 Agreements.
Storm admits that she clicked the checkbox next to which were the words "I have
read and agree to the terms of the Grant Agreement." This functions as an
admission that she had the opportunity to review the agreement (even if she now
states she did not read it despite her representation that she did) upon which
Newell was entitled to rely. Her actions of clicking the checkbox and "Accept"
button were manifestations of assent. She even admits that she clicked on the
hyperlink which contained the restrictive covenants when she states that the
procedures for accepting the 2013 Agreements were the same as the earlier RSU
awards she accepted which included a pop-up screen with a "lengthy scrolling
message which discussed [her] RSU award.“ Storm thus assented after being
provided with, and after acknowledging, actual notice.”
61

Discount Drug Mart, Inc v Devos, LTD 2013
WL 5820044 (N.D. Ohio. 2013)
“The Court is persuaded that the terms and conditions contained on the website
were not properly incorporated into the Distribution Agreement. "`Incorporation by
reference is proper where the underlying contract makes clear reference to a
separate document, the identity of the separate document may be ascertained,
and incorporation of the document will not result in surprise or hardship.'“… In this
instance, although the Distribution Agreement does make clear reference to
another document (that being the terms and conditions contained on the website),
incorporation of that "document" could clearly result in surprise or hardship, since
Guaranteed Returns was free to unilaterally modify the Terms and Conditions at
any time. Further, Guaranteed Returns concedes that it has modified the Terms
and Conditions in the past. As Drug Mart correctly indicates, one party to contract
may not modify an agreement without the assent of the other party. Moreover,
there is no indication that the relevant terms were actually part of the Terms and
Conditions at the time the parties executed the Distribution Agreement. The Court
accordingly concludes that the contents of the website were not properly
incorporated into the Distribution Agreement.”
62

SPAM Arrest, LLC v Replacements, LTD
2013 WL 4675919, (W.D. Wash., 2013)
¬ Claim by SPAM Arrest for $1.2 million for breach of agreement to pay
$2,000 for 600 emails sent in violation of clickwrap agreement. The
term was in an agreement at a link on a verification page which was
squeezed between a CAPTCHA graphic and the box the for entry of the
verification code:
¬ By clicking the "VERIFY" button above, and in consideration for
Spam Arrest, LLC forwarding your e-mail (and any e-mails you may
send in the future) to the intended recipient (the "Recipient"), you
agree to be bound by the following Sender Agreement . . . .
63

2013 WL 4675919, (W.D. Wash., 2013)
¬ “In Sentient Jet's view, Spam Arrest cannot prove mutual assent to enter any
Sender Agreement because no one who completes Spam Arrest's
verification process knows that he or she is entering a contract. In
Washington, "parties must objectively manifest their mutual assent" in order
to form a contract…
¬ Among other things, the jury would consider whether Spam Arrest's use of a
CAPTCHA tends to obscure the disclosure of the Sender Agreement.
Sentient Jet offers evidence that the standard use of a CAPTCHA is not to
indicate assent to a contract, but to differentiate humans from computers. It
is possible (although far from certain) that objectively reasonable senders
associate CAPTCHAs so strongly with their identification function that they
do not notice Spam Arrest's use of the CAPTCHA as a means to manifest
mutual assent. In short, factual disputes prevent the court from deciding
whether senders who verified after October 2011 manifested assent to the
Sender Agreement. Sentient Jet conceded as much at oral argument.”
64

2013 WL 4675919, (W.D. Wash., 2013)
¬ “Assuming that Spam Arrest could demonstrate that a Sentient Jet employee
manifested assent to a Sender Agreement, it remains its burden to
demonstrate that the employee had the authority to bind Sentient Jet…
¬ Employees who have authority to use corporate email addresses probably
have authority to undertake certain acts incidental to sending email. Without
additional evidence, however, no jury could conclude that this generic
authority includes authority to enter a contract that imposes $2,000 in
liquidated damages for every email sent in violation of the contract. It is not
reasonable, either from the point of view of the employee or of Spam Arrest,
to assume that the authority to engage in an act that typically costs nothing
implies authority to bind the company to pay $2,000 for the same act. As a
matter of law, Sentient Jet's authorization for its employees to use its email
addresses did not vest them with actual or apparent authority to enter the
Sender Agreement.”
65

BE, IN, Inc v Google Inc 2013 U.S.Dist. LEXIS
147047 (N.D.Cal. Oct. 13, 2013)
¬ Whether terms in browsewrap agreement prohibiting use, copying or distribution of contents at CamUp
site could be used in claim against Google for trade secret misappropriation in its Hangouts part of
Google+.
¬ “The Court finds that these pleadings are insufficient to establish contract formation because, as a
matter of law, they do not establish grounds for the Court to find a manifestation of Defendants' mutual
assent to the Terms of Service. Be In argues that the SAC properly alleges that Defendants agreed to
the Terms of Service because of its conclusory statement that "Defendants agreed to [the Terms of
Service] when they used and/or visited the CamUp website." … Defendants' mere use of the website
can only serve as a manifestation of assent where Defendants had, or should have had, reason to know
that mere use would be so interpreted… The SAC provides no grounds, beyond the mere existence of a
link, for the Court to find that Defendants were put on notice that mere use of the website would be
interpreted as agreement to the Terms of Service. The SAC does not allege the size or typeface of the
link, the perhaps central or obvious location of the link on the page, or even the text of the link, but
merely alleges the existence of such a link. Because browsewrap agreements, where enforceable, are a
powerful means of binding users with very little affirmative assent, a complaint must state facts
establishing the means by which the link in question would give notice to a reasonably prudent internet
user.”
¬ See also, Sharon Roller v TV Guide Online Holdings 2013 Ark. 285 (Ark Sup.Ct. 2013) and IT
Strategies Group, Inc. v Allday Consulting Group, LLC 975 F.Supp.2d1267 (S.F.Fla. 2013),
(browsewraps not enforced); EDME v Internet Brands, Inc, 968 F.Supp.2d 519 (E.D.N.Y.2013) (forum
selection clause not enforced where court could not tell what type of agreement was being asserted.)
66

AvePoint, Inc. v. Power Tools, Inc. , 2013 WL
5963034 (W.D.Va.,Nov. 7, 2013)
“At this stage of the proceedings, the court is constrained to conclude that the facts set
forth in the amended complaint are sufficient to plausibly allege the existence of an
enforceable browsewrap agreement...AvePoint has alleged more than the mere
existence of a link at the bottom of the AvePoint website. See Cvent Inc., 739 F.Supp.2d
at 936 (holding that the plaintiff's “bare assertion[ ] that its terms of use were displayed on
its website” was insufficient to establish that the defendants were on actual or
constructive notice of those terms); Be In, Inc., 2013 WL 5568706, at *9, 2013 U.S. Dist.
LEXIS 147047, at *33 (holding that the plaintiff failed to provide allegations from which
the court could infer valid contract formation, where the plaintiff “merely allege[d] the
existence of ... a link [to the website's terms and conditions]”). Instead, AvePoint cites
additional facts to support its claim that Axceler had actual or constructive knowledge of
the Website Terms and Conditions. Specifically, AvePoint contends that the fact that
Axceler went to the trouble of creating a fictitious profile and email account in order to
download the software suggests that Axceler had knowledge of the Terms and
Conditions, and was aware that they prohibit users from downloading materials for
commercial use. AvePoint also claims that Axceler has a similar browsewrap agreement
on its own website that restricts the use of downloaded software and, thus, that it should
have known that AvePoint's website has similar terms and conditions.”
67

Forcelli v. Gelco Corp., 109 AD 3d 244 (N.Y.
App. Div. 2nd Sept. 2013)
¬ “In the case at bar, Greene's email message contained her printed name at the
end thereof, as opposed to an "electronic signature" as defined by the Electronic
Signatures and Records Act… Nevertheless, the record supports the conclusion
that Greene, in effect, signed the email message. In particular, we note that the
subject email message ended with the simple expression, "Thanks Brenda
Greene," which appears at the end of the email text. This indicates that the author
purposefully added her name to this particular email message, rather than a
situation where the sender's email software has been programmed to
automatically generate the name of the email sender, along with other identifying
information, every time an email message is sent…
¬ Accordingly, we hold that where, as here, an email message contains all material
terms of a settlement and a manifestation of mutual accord, and the party to be
charged, or his or her agent, types his or her name under circumstances
manifesting an intent that the name be treated as a signature, such an email
message may be deemed a subscribed writing within the meaning of CPLR 2104
so as to constitute an enforceable agreement.”
68

Metro. Reg'l Info. Sys. v. AMER. HOME
REALTY NET., 722 F. 3d 591 (4th. Cir. 2013)
¬ “A transfer of one or more of the exclusive rights of copyright ownership by
assignment or exclusive license "is not valid unless an instrument of conveyance,
or a note or memorandum of the transfer, is in writing and signed by the owner of
the rights conveyed or such owner's duly authorized agent." 17 U.S.C. § 204(a)”
¬ “The issue we must yet resolve is whether a subscriber, who "clicks yes" in
response to MRIS's electronic TOU prior to uploading copyrighted photographs,
has signed a written transfer of the exclusive rights of copyright ownership in those
photographs consistent with Section 204(a). Although the Copyright Act itself does
not contain a definition of a writing or a signature, much less address our specific
inquiry, Congress has provided clear guidance on this point elsewhere, in the E-
Sign Act.”
¬ “To invalidate copyright transfer agreements solely because they were made
electronically would thwart the clear congressional intent embodied in the E-Sign
Act. We therefore hold that an electronic agreement may effect a valid transfer of
copyright interests under Section 204 of the Copyright Act. Accordingly, we agree
with the district court that MRIS is likely to succeed against AHRN in establishing its
ownership of copyright interests in the copied photographs.”
69

In the Matter of a WARRANT TO SEARCH A CERTAIN E– MAIL
ACCOUNT CONTROLLED AND MAINTAINED BY MICROSOFT
CORPORATION 2014 WL 1661004 (S.D.N.Y. Apr. 25, 2014)
¬ Microsoft moved to quash a search warrant to the extent that it directed it to
produce the contents of one of its customer's e-mails where that information was
stored on a server located in Dublin, Ireland. Microsoft contended that courts in
the United States are not authorized to issue warrants for extraterritorial search
and seizure.
¬ “It has long been the law that a subpoena requires the recipient to produce
information in its possession, custody, or control regardless of the location of that
information...To be sure, the “warrant” requirement of section 2703(a) cabins the
power of the government by requiring a showing of probable cause not required
for a subpoena, but it does not alter the basic principle that an entity lawfully
obligated to produce information must do so regardless of the location of that
information.
¬ This approach is also consistent with the view that, in the context of digital
information, “a search occurs when information from or about the data is exposed
to possible human observation, such as when it appears on a screen, rather than
when it is copied by the hard drive or processed by the computer.””
71

Joffe v Google, Inc. 729 F.3d 1262 (9th.Cir.2013)
¬ Whether Google is liable under the Wiretap Act for capturing Street View
photographs from unencrypted Wi-Fi networks. Specifically, was the data
transmitted over a Wi-Fi network an "electronic communication" that is "readily
accessible to the general public" and exempt under the Act?
¬ “The payload data transmitted over unencrypted Wi-Fi networks that was captured
by Google included emails, usernames, passwords, images, and documents that
cannot be classified as predominantly auditory. They therefore fall outside of the
definition of a "radio communication“.
¬ “Wi-Fi transmissions are not "readily accessible" to the "general public" because
most of the general public lacks the expertise to intercept and decode payload data
transmitted over a Wi-Fi network. Even if it is commonplace for members of the
general public to connect to a neighbor's unencrypted Wi-Fi network, members of
the general public do not typically mistakenly intercept, store, and decode data
transmitted by other devices on the network. Consequently, we conclude that Wi-Fi
communications are sufficiently inaccessible that they do not constitute an
"electronic communication... readily accessible to the general public" under 18
U.S.C. § 2511(2)(g)(i) as the phrase is ordinarily understood.”
72

Vidal -Hall & Ors v Google Inc [2014] EWHC
13 (QB) (16 January 2014)
¬ Is Google liable for collecting and displaying users’ personal information in
targeted advertising on users computers by using cookies that circumvented
Safari default browser cookie blocking settings?
¬ “There is no dispute that, following the discovery of how Google Inc had
been collecting the information from Safari browsers in the Relevant Period,
Google Inc has faced regulatory sanctions in the USA. In August 2012 it
agreed to pay a civil penalty of US$22.5 million to settle charges brought by
the United States Federal Trade Commission ("FTC") that it misrepresented
to certain users of the Safari browser that it would not place tracking cookies
or serve targeted advertisements to those users. Further, on 11 November
2013 it agreed to pay US$17 million to settle US state consumer-based
actions brought against it by United States attorneys general representing 37
US states and the District of Columbia. In addition, the Defendant was
required to give a number of undertakings governing its future conduct in its
dealings with users in the USA.”
73

Vidal -Hall & Ors v Google Inc [2014] EWHC
13 (QB) (16 January 2014)
¬ Mr White submits that the Browser-Generated Information was not private. It is
anonymous…
¬ “I find this a surprising submission to be made on behalf of Google Inc. It would not
collect and collate the information unless doing so enabled it to produce something
of value. The value it produces is the facility for targeted advertising of which the
Claimants complain, and which yields the spectacular revenues for which Google Inc
is famous…
¬ At the point at which the advertisement is visible on a user's screen, the user is likely
to be identifiable to a third party viewer…
¬ But what is specific about the complaints in this case is that the information that was,
or may have been, apparent from the screens was, on particular occasions, private
information. The particular types of information specified in each of the Confidential
Schedules is information for which each Claimant has a sufficiently strong case that
that information was private…
¬ In my judgment the Claimants have a sufficiently good case on this point that it would
be wrong to set aside the Master's order in relation to the claims for misuse of private
information.”
74

In Re: Google Inc. Cookie Placement
Consumer Privacy Litigation 2013 WL
5582866 (D.Del. Oct 9, 2013)
¬ Whether Google liable for circumventing Apple Safari and/or Internet Explorer
browser blockers into accepting cookies to allow to display targeted advertising.
(“Google stopped only when caught and began removing the illicit cookies.”)
¬ “Plaintiffs argue that defendants intercepted both transactional information and
"contents," such as the URLs and "information that Class Members exchanged
with first-party websites during the course of filling out forms or conducting
searches." Most of this information cannot be characterized as "contents."
Specifically, "personally identifiable information that is automatically generated by
the communication" is not "contents" for the purposes of the Wiretap Act…
¬ Even if plaintiffs' browsers were "tricked" into sending the URLs to Google, the
court concludes that Google did not intercept contents as provided for by the
Wiretap Act. Given this legal obstacle, defendants' motions to dismiss are
granted.”
75

In Re: Google Inc. Gmail Litigation 2013 WL 5423918
(N.D. Cal. Sep. 26, 2013)
¬ Whether Google is liable under US Wiretap Act for intercepting, reading, and
collecting contents of emails to create user profiles and provide users with ads?
¬ Section 8 of the Terms of Service that were in effect from April 16, 2007, to
March 1, 2012, stated that "Google reserves the right (but shall have no
obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all
Content from any Service. This sentence was followed by a description of steps
users could take to avoid sexual and objectionable material. ("For some of the
Services, Google may provide tools to filter out explicit sexual content."). Later,
section 17 of the Terms of Service stated that "advertisements may be targeted
to the content of information stored on the Services, queries made through the
Services or other information."
¬ The Court finds that Gmail users' acceptance of these statements does not
establish explicit consent… This does not suggest to the user that Google would
intercept emails for the purposes of creating user profiles or providing targeted
advertising.”
76

In Re: Google Inc. Gmail Litigation 2013 WL
5423918 (N.D. Cal. Sep. 26, 2013)
¬ Did third party users by agreeing to its Terms of Service and Privacy Policies
consent to Google reading their emails?
¬ “Google has cited no case that stands for the proposition that users who send
emails impliedly consent to interceptions and use of their communications by
third parties other than the intended recipient of the email. Nor has Google cited
anything that suggests that by doing nothing more than receiving emails from a
Gmail user, non-Gmail users have consented to the interception of those
communications. Accepting Google's theory of implied consent — that by merely
sending emails to or receiving emails from a Gmail user, a non-Gmail user has
consented to Google's interception of such emails for any purposes — would
eviscerate the rule against interception…The Court does not find that non-Gmail
users who are not subject to Google's Privacy Policies or Terms of Service have
impliedly consented to Google's interception of their emails to Gmail users.”
¬ See, In re Google Inc. Gmail Litigation, 2014 WL 1102660 (N.D.Cal. Mar 18,
2014) (Class certification denied because implied consent issues predominate).
77

PIPEDA Report of Findings #2014-001OPC
¬ Report of Findings: Use of sensitive health information for targeting of
Google ads raises privacy concerns.
¬ “The complainant indicated that he was followed over a period of a month, which
is inconsistent with Google’s claim that advertisements are delivered based on
pages recently visited during the same browsing session. Our technical analysis
confirmed this, also showing that advertisements related to CPAP devices
appeared for a week, representing the longest test period.
¬ Google’s privacy policy states “[w]e use information collected from cookies and
other technologies, like pixel tags, to improve your user experience and the
overall quality of our services […] When showing you tailored ads, we will not
associate a cookie or anonymous identifier with sensitive categories, such as
those based on race, religion, sexual orientation or health”.
¬ Since we are of the view that the advertisements served by Google in this case
were tailored based on a personal health interest, Google is delivering tailored
ads in respect of a sensitive category, in this case, health. In our view, this
practice does not correspond to the actual wording of the privacy policy as
outlined above.”
78

PIPEDA Report of Findings #2014-001OPC
¬ “Our Office is of the view that meaningful consent is required for the delivery
of OBA. As stated in our Office’s OBA guidelines, implied or opt-out consent
for OBA purposes may be acceptable provided that the information collected
and used is limited, to the extent practicable, to non-sensitive information
(avoiding sensitive information such as medical or health information).
¬ The complainant was searching information related to a medical device used
to treat sleep apnea. Given that this complaint relates to personal health
information (i.e. online activities and viewing history of health related
websites), our Office is of the view that such information is
sensitive. Therefore, implied consent for the collection or use of the
complainant’s sensitive personal health information for the purpose of
delivering ads based on the complainant’s online behaviour is not
appropriate, and express consent is required.
¬ Since Google did not seek express consent in the circumstances, we are of
the view that in this context, Google has contravened Principles 4.3 and
4.3.6 of the Act.”
79

Yunker v Pandora Media, Inc, 2014
U.S.Dist.Lexis 30829 (N.D.Cal.2014)
¬ “Pandora's Privacy Policy provides, in part, that it may: “use and share non-
personally identifiable information, such as general demographic or location
information, or information about the computer or device from which you access
[the Pandora App]. Additionally, we may de-identify personally identifiable
information and share it in a de-identified or aggregated form with third parties,
advertisers and/or business partners in order to analyze [Pandora] usage, improve
the Pandora Services and your listener experience, or for other similar purposes…
¬ Pandora argues that the Privacy Policy is not a contract. Plaintiffs allege that they
transmitted PII, which has value to Pandora, in exchange for use of the Pandora
App and a promise that Pandora would use that information in accordance with the
terms of its Privacy Policy. Based on these allegations, and at this stage of the
proceedings, the Court concludes that Plaintiffs sufficiently allege a contract
existed…Thus, Plaintiffs allege that because Pandora used and transmitted PII in a
manner that did not comport with the terms of the Privacy Policy, they incurred
overage charges on their data and memory plans, i.e. they suffered damage as a
result of the alleged breach. Once again, although Plaintiffs may face an uphill
battle proving this claim, they have stated a claim.”
80

Cinar Corporation v. Robinson, 2013 SCC 73
82

Cinar Corporation v. Robinson, 2013 SCC 73
“The approach proposed by the Cinar appellants is similar to the
“abstraction-filtration-comparison” approach used to assess substantiality
in the context of computer software infringement in the United States: see
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2nd
Cir. 1992)… It has been discussed, though not formally adopted, in
Canadian jurisprudence: Delrina Corp., at paras. 43-47. I do not exclude
the possibility that such an approach might be useful in deciding whether a
substantial part of some works, for example computer programs, has been
copied. But many types of works do not lend themselves to a reductive
analysis. Canadian courts have generally adopted a qualitative and holistic
approach to assessing substantiality. “The character of the works will be
looked at, and the court will in all cases look, not at isolated passages, but
at the two works as a whole to see whether the use by the defendant has
unduly interfered with the plaintiff’s right…”
83

Distrimedic inc. c. Dispill Inc., 2013 FC 1043
¬ Is The Dispill Label Form Susceptible To Copyright Protection?
¬ “I am prepared to accept that what Richards really seems to be
referring to by the term “Dispill Label Form” is a series of entry
screens from a software program written in the DOS language”.
¬ ‘There is no dispute between the parties that a form does not
have to be on a paper support and that a computer screen (which
in any event can be printed) falls within the definition of a “work”
for the purposes of the Copyright Act, and can therefore be
protected. Similarly, the Defendants to the Counterclaim do not
dispute that the DOS Dispill Label Form is a literary work.”
84

¬ “There are…problems preventing the recognition of copyright in the
Dispill Label Form… the selection of the information for the DOS
Dispill Label Form bears a very low degree of originality, as it is
mostly dictated by provincial legislation on the labelling of
prescription drugs, both in Quebec and Ontario, where the parties’
products are mainly sold…
¬ In the case at bar, I have not been convinced that the selection of
information and its arrangement in the DOS Dispill Label Form
required of its author the type of skill and judgment deserving of
copyright protection. It may be, as suggested by counsel for
Richards, that Dispill was the first to create a method of generating
the necessary patient information for printing on each cell of a pill
dispenser. This cannot be the subject of copyright protection,
however, as it would amount to creating a monopoly on an idea or
method, which the law does not permit.”
85

¬ “The asset purchase agreement whereby Mr. Bouthiette sold his
business to his company Dispill Inc., dated January 1, 1998, makes
no mention of any copyright in the Dispill Label Form…
¬ In the present case, I do not think that the Clause 1 of that
Agreement, stating that “[l]e vendeur vend à l’acquéreur, qui l’achète,
son entreprise de vente d’un système de dispensateur de
médicaments, connue sous le nom de DISPILL…”[Google translate:
“the seller sells to the purchaser, who buys his company sales
system dispensing of medicines, known as the DISPILL”], explicit
enough to encompass the alleged copyright in the Dispill Label
Form. This is made even clearer by the description that is given of
that enterprise in that same clause, which explicitly refers in Section
C to the invention in the patent. It doesn’t appear, therefore, that the
parties to the agreement had the Dispill Label Form and the copyright
possibly attaching thereto in mind, particularly as they made no
reference to it despite referring explicitly to the patent.”
86

(AOM) NA Inc. et al v. Reveal Group, 2013
ONSC 8014
¬ “Copyright is a very specific right attaching to a “work”. I agree with the
defendants that the pleading is vague about what it is that is subject to
copyright and what it is alleged has been the breach of copyright giving rise
to this cause of action. Copyright cannot attach to an idea such as a
method. It can of course attach to the manuals or other material in which the
method is described. Similarly with computer software, copyright can attach
to source code, to a graphic user interface, to manuals and to other material
as defined in the Act. Copyright cannot attach simply to what a computer
program does. The plaintiff must specify what it is that is covered by
copyright and what it alleges has been done that gives rise to the statutory
remedies.
¬ On this point the defendant is successful. The claim for copyright breach will
be struck out with leave to amend.”
87

Voltage Pictures LLC v. John Doe, 2014
FC 161
¬ “Privacy considerations should not be a shield for wrongdoing and
must yield to an injured party’s request for information from non-
parties. This should be the case irrespective of the type of right
the claimant holds. The protection of intellectual property is ipso
facto assumed to be worthy of legal protection where a valid
cause of action is established. There is little dispute with the
correctness of this assertion. Copyright is a valuable asset which
should not be easily defeated by infringers. The difficulty in this
case is that it is not clear that the protection of copyright is the
sole motivating factor supporting Voltage’s claim in this Court.”
¬ Subscriber data ordered to be provided on terms.
88

Google Search Removal and EU Privacy Ruling Review

Google Search Removal and EU Privacy Ruling Review

Recomendados

Recomendados

Más contenido relacionado

Similar a Google Search Removal and EU Privacy Ruling Review

Similar a Google Search Removal and EU Privacy Ruling Review (20)

Más de bsookman

Más de bsookman (20)

Último

Último (20)

Google Search Removal and EU Privacy Ruling Review