Lawyers drafting online terms of use/service and privacy policies are well-advised to establish a record that allows the client to demonstrate the existence of such terms and the date they were in effect. Such a record will prove quite handy in future litigation. See, eg, Kinney v. YouTube, LLC (Cal. Ct. App. 2018) (YouTube forced to rely on sworn testimony of engineer responsible for posting YouTube terms of service to prove that plaintiff click-accepted a version of the YouTube terms that included a synthetic one-year statute of limitations).
The Wayback Machine is one way to establish just such a record. Launched in 2001 by the Internet Archive, a nonprofit based in San Francisco, California, the Wayback Machine is a digital archive of the entire Internet. At this site, one can upload or capture a webpage on a specific date and time, and then retrieve it to prove its existence on that date and time. Go here to see a copy of the affidavit that the Internet Archive manager uses for establishing an evidentiary foundation for archived webpages. Courts have upheld the admissibility of such evidence. See United States v. Gasperini (2nd Cir. 2018).
The Wayback Machine should be used, not just for preserving a record of clients’ terms, but for preserving a record of online terms that clients entered into, or of online documents that traditionally signed agreements reference in URLs embedded in the document. In fact, the best practice in this situation would be to create the Wayback Machine entry and email that to the contract counterparty after the deal concludes.
Clients with employees scattered far and wide pose challenges when it comes to selecting choice of law and forum in employee non-disclosure agreements or PIIAs (Proprietary Information and Inventions Agreements). Some clients may prefer to require arbitration for disputes governing the employment relationship (eg, wage and hour disputes, discrimination or retaliation claims, etc), while preserving the ability to go to court with respect to IP infringement claims, non-compete obligations, and breach of confidentiality.
Requiring a remote employee far from the state of your client’s HQ to litigate in the HQ state for such actions could prove problematic. One should expect a motion contesting jurisdiction on forum non conviens grounds. What’s more, juries may be sympathetic to an employee hauled in front of a court far from home at the behest of an employer’s one-sided contract of adhesion.
One possible workaround is to preserve the ability to sue in the employee’s home court. The lawyers of Redline have posted clauses and redlined variations for use in employee NDAs and PIIAs that attempts to walk this fine line.
Moral philosophers object to the ethic of zeal, also known as the fiduciary duty and the principle of partisanship, because it requires lawyers to ignore any adverse effects that lawful actions beneficial for clients may have on third parties. For example, when representing a landlord, a lawyer may not refrain from evicting a tenant family that is behind on the rent for fear that the children will wind up on the street. Because harms inflicted on third parties normally bear on moral assessments, philosophers contend that lawyers who ignore them are amoral, immoral, or morally stunted.
Critics of zealous representation have won important battles. Where the Model Code of Professional Responsibility once canonized the requirement “to represent [a] client zealously within the bounds of the law,” the Model Rules of Professional Conduct now addresses zeal in a brief comment on diligence which emphasizes that a lawyer need not press for every advantage. Zealous representation has acquired a bad name.
This article offers a defense of zealous representation that is grounded in the common law of agency. The central points are, first, that the requirement to promote clients’ interests exclusively disciplines the common law by ensuring that principals’ rights and obligations are changed only with their consent; and, second, that the requirement facilitates the division and specialization of labor by shoring up principals’ confidence in agents who possess specialized knowledge and skills. Critics of the ethic of zeal have neither recognized these functions nor taken proper account of them when encouraging lawyers to give non-clients’ interests greater weight. … The many lawyers and law professors who have written about the ethic of zeal bear more responsibility for the persistence of the debate than the philosophers who have criticized the profession from the outside. One cannot reasonably expect non-lawyers to have explored the ethic of zeal’s roots in agency law when lawyers and law professors, who should have known better, ignored them.
But philosophers do bear some responsibility for the widespread belief that a life spent helping people with legal problems cannot be fulfilling or morally justified. Scorn for lawyers comes through most clearly [by those] who accuse them of living in a simplified world, of refusing to grapple with moral dilemmas, or of being morally stunted. In fact, the fiduciary duty is the most morally demanding duty imposed by the common law. It requires lawyers to be altruistic. They must act solely for the benefit of clients, even to their own detriment if the need arises. Law is a helping profession, and the practice of law can be as worthwhile, fulfilling, and moral as any other line of endeavor which has the primary consequence of making people better off. It is by design, not by accident, that the virtues of agency—loyalty, obedience, diligence, and trustworthiness—are moral ones. To be a good lawyer, one must commit oneself to a code and be strong enough to do what the code requires, even when one would much rather do anything but.
Many lawyers take a belt-and-suspenders approach to clauses that are intended to transfer copyright ownership from the developer-vendor to the customer with respect to the customer’s deliverables it is paying for. “Let’s call it an assignment,” they say, and “let’s also call it a work for hire, just in case.”
The problem here is that in certain circumstances, it can be crucial to know with objective certainty whether copyright has been assigned, or whether ownership of it passed automatically via work-for-hire doctrine under applicable copyright law (such as the US Copyright Act’s definition of work made for hire in section 101).
If the former, post-termination rights may apply, giving the party assigning copyright the right to rescind the assignment and take it back for free (albeit only after a considerably long period of time). If the latter, the transfer of ownership is automatic and cannot be rescinded.
That said, it’s not always clear whether work for hire rules will apply. The key is preserving the transfer of title in a way that best protects the customer.
Solutions to this problem can be found here at Redline.
A recent US district court decision in a lawsuit brought by Facebook and Instagram carries important lessons for counsel in the drafting and negotiation of survival clauses—clauses that purport to extend the operative effect of contractual obligations beyond the termination or expiration of the relationship.
Meta Platforms, the owner of both sites, brought a breach of contract action against Bright Data, alleging that Bright Data violated online terms of service and use by scraping (anonymized) user data and selling access to analysis of it. The terms of both sites prohibit the collection of user data via automated means and the selling of such data.
In adjudicating cross motions for summary judgment, the district court held that the Facebook and Instagram terms do not prohibit logged off public data scraping even during periods when the scraper has an account. More importantly, scraping after termination of such accounts, the court ruled, was likewise not prohibited—despite the existence of a survival clause that purported to extend the applicability of the anti-scraping clauses beyond termination of the user’s accounts.
The survival clause in question stated, “If you delete or we disable or delete your account, these Terms shall terminate as an agreement between you and us, but the following provisions will remain in place …,” listing sections among which included provisions prohibiting the automated collection and sale of user data.
The court cited caselaw for the proposition that perpetual obligations are disfavored. The court moreover accepted Bright Data’s characterization of the clause as being ambiguous. The survival clause operated to preserve breach claims brought post-termination for actions that violated the terms prior to termination, the court held, but did not with sufficient clarity operate to impose prohibitions on otherwise permissible conduct post-termination. Absent terms to the contrary, the purpose of the survival clause is to “address enforcement of claims arising from pre-termination conduct, not to create lifetime bans for conduct unrelated to parties’ contractual relationship.”
The lawyers of Redline have posed strategies and clauses to further the objective that Facebook and Instragram were pursuing. Engage the debate here.
