The Short Names

People take for granted “browsewrap” agreements – agreements that end users agree to when they browse websites. (“By browsing this website or accessing any of the content, you hereby agree to the following terms and conditions.”) The core issue of whether these website terms create enforceable contracts has not been litigated very often (see, e.g., Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir.2002), for one example). For the most part, the general consensus is pretty clearly that browsewrap agreements are enforceable, although the parties may dispute the enforceability of particular terms. Much of the action is around particular provisions such as arbitration, disclaimers, or around other tweaks, such as whether parties can incorporate terms by reference.

So it was interesting to see a court rule that terms which were linked in fine print and under the fold were not sufficient to create a binding agreement. The case is Hines v. Overstock, 09 CV 991 (SJ) (2009 U.S.Dist. Lexis 81204 (Sept. 8, 2009) (E.D.N.Y.). This was a class action alleging that Overstock improperly assessed “restocking” fees.Overstock moved to compel arbitration, based on an arbitration clause in the browsewrap agreement on the Overstock website. Not only did the court deny the request to arbitrate, the court found that Overstock’s website terms did not create an enforceable agreement at all – because plaintiff had no actual or implied notice of the terms.

Ouch:

In the instant case, it is clear that Plaintiff had no actual notice of the Terms and Conditions of Use. Defendant has also failed to show that Plaintiff had constructive notice. . . Despite Defendant’s assertion. .. [no] evidence submitted by Defendant refute Plaintiff’s . . .statement that she was never advised of the Terms and Conditions and could not even see the link to the without scrolling down to the bottom of the screen – an action that was not required to effectuate her purchase.
…
[Plaintiff] therefore lacked notice of the Terms and Conditions because the website did not prompt her to review the Terms and Conditions and because the link to the Terms and Conditions was not prominently displayed so as to provide reasonable notice of the Terms and Conditions. Very little is required to form a contract nowadays – but this alone does not suffice.

Overstock (and all retailers or anyone else who creates an account on behalf of end users and has some sort of ongoing relationship) should take the check the box route. Make the user check the box to indicate assent to the terms of use. This makes the “I didn’t have notice” argument a bit harder. If you do not want to do that at least clearly disclose your terms and conditions and put them in an obviously visible location which the end user will necessarily come across in the course of completing transactions.

I don’t have a sense of how significant this ruling will be, since in most instances, websites make terms readily available and there is pretty good evidence that the person challenging the agreement read or at least came across the terms. But it’s tough to say. Overstock is a pretty large retailer. There are probably others out there who are in a similar position.

Also, it’s interesting that many online agreements are being litigated and are being shot down in court. Blockbuster is one recent example that comes to mind – a court found its agreement illusory based on the “we can change the agreement anytime” clause. What’s going on here? Did the early wave of online agreement drafters drop the ball? Were they [we] too aggressive? Did they all start off with the wrong “form”?  Is there any trend here?  Probably not, but it’s tough to say.  This decision wasn’t based on any terms of the agreement, but just the fact that the terms were not obviously displayed to end users.  While the court didn’t find anything wrong with the terms, the decision reflects some skepticism as to whether anyone actually reads online terms.  (I don’t know that the blame falls on the shoulders of the lawyers here.  Often you draft an agreement with clear instructions and the implementation on the website does not track your instructions, or the website changes.)

Related:  BNA’s TechLaw has a post on “hyperwrap agreements” that’s definitely worth checking out.  Ton of good posts at TechLaw lately.   

I guess a better question when talking about the admissibility of tweets is whether any exceptions to the hearsay rule apply?  Tweets are out of court statements which are not admissible in court unless they fit into one of the exceptions or exclusions.  But they will most likely be admissible, at least judging from the treatment by courts of email and other similar evidence. 

Professor Brenner has a good post at Cyb3rCrim3 (“Evidentiary Tweets?“) which looks at whether and in what circumstances Tweets (or similar messages) will be admissible.  She links to a post by Joshua Konkle (“Twitter and Federal Rules of Evidence 803(1) and 803(2), hearsay exceptions“), which I’ve previously linked to as well. 

Professor Brenner looks at the excited utterance and present sense impression exceptions to the hearsay rule, and thinks that while they may apply to allow the admission of tweets, there’s another candidate:

I strongly doubt that the business records exception or many of the other hearsay exceptions will apply to tweets . . . but the exceptions contained in Rules 803(1) and 803(2) just might. …

I don’t think these are the only exceptions that could be used for tweets. Under Rule 803(3) of the Federal Rules of Evidence, “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will” is not excluded by the default hearsay rule. According to the Advisory Committee, this is “essentially a specialized application” of the present sense impression exception. Advisory Committee Federal Rules of Rule 803(3). The Committee also noted that excluding statements of memory or belief is “necessary to avoid the virtual destruction of the hearsay rule, which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis” for inferring the event which “produced the state of mind.”

It seems to me Rule 803(3) may be a better fit for tweets than the other two rules. As a federal judge noted, “Rule 803(3) is particularly useful when trying to admit e-mail, a medium of communication that seems particularly prone to candid, perhaps  too-candid, statements of the declarant’s state of mind, feelings,emotions, and motives.” Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (U.S. District Court for the District of Maryland 2007). And at least one court relied on this exception in ruling that emails were admissible in a federal criminal prosecution. U.S. v. Safavian, 435 F. Supp.2d 36 (U.S. District Court for the District of Columbia 2006).

So the candidates are…present sense impression (803(1)), excited utterance (803(2)), and now the then-existing mental state (803(3)).  I guess the answer will depend on the message in question.  But all three are potential candidates.  (If you are lucky enough to have an opposing party who tweets or Facebooks, the admission of a party opponent route works as well.  This is technically not even considered hearsay.)  Either way, this type of evidence is likely admissible for the reasons stated in Lorraine.  Basically email, Twitter, Facebook, etc. lend themselves to candid conversations and admissions.  The rules of evidence have exceptions which are designed to accommodate the admission of these types of communications, even when they are hearsay.  [Sidenote:  you mean there's not a "what I ate for breakfast" exception to the evidentiary rules for twitter!!] 

Of course, remember to authenticate the evidence and demonstrate that the account is actually registered to the person you are claiming it’s registered to.  Sounds like a menial step, but could and probably will turn out to be costly if you ignore it. 

Here’s a previous post I did on email authentication at the summary judgment stage that discusses email authentication at length.  My tentative impression at the time was that the present sense impression could be applicable to tweets and I still think that’s right, but depending on the context, Professor Brenner’s suggestion may also fit the bill. There may be other exceptions or bars to admission in specific cases obviously.

(h/t Moshe Glickman)

Added: good question from William Carleton in the comments about discovery requests and this type of evidence (i.e., how to go about tracking down this type of evidence).  More on that later. 

Yahoo vet Brad Garlinghouse, the author of the infamous Peanut Butter Manifesto, is back in the portal business—and in a big way. Garlinghouse, who left Yahoo (NSDQ: YHOO) last year (part of that company’s brain drain), is joining AOL (NYSE: TWX) as president of Internet and Mobile Communications, spearheading the portal’s global efforts to expand the reach of AIM/ICQ, e-mail and SMS services. His role on CEO Tim Armstrong’s team doesn’t stop there: he’ll head AOL’s Silicon Valley operations from its Mountain View campus and also will be the West Coast lead for AOL’s VC arm, AOL Ventures. The latter fits in with his most gig as senior adviser at Silver Lake Partners.

Communications is one of AOL’s newly devised five strategic areas and, until now, also one of the most glaring gaps in the top exec ranks. Garlinghouse’s background makes him almost uniquely qualified for the job: nearly six years at Yahoo, starting as VP-communication products and leaving as SVP of Communications and & Front Doors. His responsibilities at Yahoo including Yahoo Mail and overseeing Flickr and Yahoo Groups. Before Yahoo, he was CEO of Dialpad.com, general partner at @Ventures.com and worked at @Home Network as well as SBC Communications.

—Moving from peanut butter to … In the Peanut Butter Manifesto, the four-page 2006 memo that wound up in the Wall Street Journal, Garlinghouse explained why PB isn’t a great way to describe a company: “I’ve heard our strategy described as spreading peanut butter across the myriad opportunities that continue to evolve in the online world. The result: a thin layer of investment spread across everything we do and thus we focus on nothing in particular. I hate peanut butter. We all should.” The blunt memo made Garlinghouse a folk hero of sorts, someone who was willing to say the emperor is naked. Now he gets the chance to put his own management ideas to work—within Armstrong’s construct, of course. Can he move away from the “jack of all trades, master of none” approach that too often afflicts portals?

Until now, most of Tim Armstrong’s hires since he joined AOL (NYSE: TWX) as CEO have been in advertising or the business side, including a number from his former employer Google. Newest hire Brad Garlinghouse is a switch in both cases: a product guy from portal competitor Yahoo (NSDQ: YHOO). Garlinghouse was exploring companies big and small as possible landing points, working as a senior adviser at Silver Lake Partners, when Armstrong called with an unexpected opportunity just weeks ago. Tuesday, he’ll be introduced as AOL’s president of internet and mobile communications. He spoke with paidContent on the eve of the announcement. Some excerpts follow:

What’s your remit for AOL? When I came in to run Yahoo Mail a long time ago, it was #3 in the industry, their messenger products were #2 in the industry. Today, they’re both #1 in their segment. Obviously, that’s part of the remit—hey, how can we go revitalize and really create wow, great consumer experiences around AOL’s core communications properties. But also it’s broader than that: how do we do that in mobile products, how do we do that participating at a very senior level in product discussions? …

I believe very much in the viewpoint that great products come from great teams. AOL certainly has its challenges attracting and retaining talented people. One of the things that impressed me the most during my interview process and the diligence I did is Tim has done an amazing job getting throughout that organization excited and the morale trend line at AOL is actually really positive and that’s incredibly hard to achieve. People are incredibly excited at all levels … People believe in authentic leadership with clearly articulated ‘here’s where we’re going’ and Tim brings that.”

One of the things that helps is Tim hasn’t had to do a massive cutback. That’s fair but by the same token he has been transparent. … He has said to his team, ‘We have to make sure our cost structure is aligned with our business opportunity.’ And he has said, ‘We’re going to have to look at that.’ He has gone on the record on that topic. … One of the things I’m impressed with in the opportunity here is as this spins out from Time Warner, instead of being managed to numbers for Time Warner, which really was harvesting it for cash flow, all of the sudden it’s like, hey, listen, let’s make this thing hum. Let’s really revitalize it and rebuild a lot of the products and the consumer experiences. Some of those things will be AOL branded, some won’t.”

If Yahoo’s peanut butter, what’s AOL? “I’m going to work on that. I don’t know my answer to that yet.I’ve been there not even 10 minutes. Some of the challenges I articulated, which (new Yahoo CEO) Carol Bartz has been proactive in trying to address, I feel like I see already a kindred spirit in the leadership that Tim has brought to bear on AOL in his first 100 days.” 

 

 

WWW.CMAI.ASIA

Press Release

 

Venugopal N Dhoot appointed Chairman CMAI

    Ravi Sharma is Executive Chairman

 

CMAI  announces new appointments

 

Communications and Manufacturing Association of India (www.cmai.asia) announced appointment of  Sri Venugopal  N Dhoot as its Chairman and Sri Ravi Sharma as its Executive Chairman .

 

CMAI, is a Telecom Industry Association  working for the Telecom sector as a whole representing all stake holders including Operators , Manufacturers , Infrastructure providers and operators , System Integrators , Value Added Services providers  etc.  CMAI  is the only association of its kind having an integrated approach and covering all segments  and technologies related with Telecom Sector in India .

 

CMAI  has signed  more than 30 MOU with different countries and associations including associations in China, Japan, Korea, Taiwan, Canada, Singapore, Malaysia, South Africa, Slovakia, Uzbekistan, Morocco, France and with  IEEE USA, CEA USA, CTO UK, IETE India, Cambridge Wireless UK and  East of England UK.

 

On this occasion Mr. Dhoot said , ” India always needed a Telecom association , which represents  all stakeholders of  Indian Telecom Industry together and  CMAI perfectly fits in that role . I feel honored in assuming the responsibility of CMAI  Chairman . I am also happy to announce the appointment of Sri Ravi Sharma as Executive Chairman. We shall work together with all stake holders for further enhancing the image of Indian Telecom sector.”

 

E 24 SF, GK II Enclave, New Delhi 110048 : Tel:41638766  Website: www.cmai.asia  Cell: +919811129879

 

 

About CMAI

 

Communications and Manufacturing Association of India (CMAI), a professional registered association, is involved in policy formulations with Government and other stake holders for technology innovations, indigenous manufacturing and communications sector and for policies concerning environmental, pollution and health. It cultivates generally good values in public and general awareness and protection in the field of health effects, synthetic and polluted environment and also the significance of natural environment and rural areas as a whole in an integrated way and manner and global peace. CMAI was actively involved in telecom policies for 3G, spectrum, licensing etc. CMAI provides a forum where telecommunications companies can unite to advance the industry’s concerns and provides exceptional value through advocacy and business opportunities, networking and continuous interaction with Government, Telecom operators and manufacturers and opinion makers.

 

CMAI Activities

 

CMAI organizes several events, delegations across telecom and IT sector. CMAI is the only association in India having more than 30 MOU with different countries and associations including IEEE USA , CEA USA , CTO UK , IETE India, Cambridge Wireless UK , East of England UK. CMAI also has MOU with associations in China , Japan , Korea , Taiwan , Canada , Singapore , Malaysia , South Africa , Slovakia , Uzbekistan , Morocco , France and various Indian associations.

 

Recently on 24^th July, 2009 CMAI with Business World INFOCOM announced National Telecom Awards, 2009, which were presented by Sh. Gurudas Kamat, Hon’ble Minister of State for Communications and IT along with Dr JS Sarma, Chairman TRAI and Sh. Sidharth Behura, Secretary DOT. The program was attended by about 850 delegates.

 

CMAI regularly takes part in Exhibitions and trade delegations for Korea , Taiwan , China , Japan , Bangkok , Singapore , USA , and UK etc. CMAI offers complimentary exhibition space as also participation in delegations. CMAI is also publishing with IKBPF a monthly magazine in Korea Asia Pacific Business and Technology.

 

www.cmai.asia

 

Contact Details : NK Goyal , President CMAI

nkgoyals@yahoo.co.in, cmai.imf@gmail.com , +91 98 111 29879

  

 

Sri  Venugopal N Dhoot

 

 

Shri Dhoot is Chairman of Videocon Industries Ltd. Mr. Dhoot is a renouned businessman and has held several positions in the Industry forums including ASSOCHAM , where Mr. Dhoot was president in year 2008.

 

Videocon is a conglomerate across the verticals of consumer electronics and home appliances, office automation, telecom, power, crude oil and natural gas. Videocon’s major breakthrough came when it received one of the first licenses to manufacture color televisions in India in the early 80’s. The company has now become the largest manufacturer of color picture tubes and CPT glasses in the world, with operations across Mexico , Italy , Poland , China and India .

Armed with an uncanny foresight and a global outlook, Mr. Dhoot has successfully acquired the color picture tube operations of the Thomson Group and the Indian operations of AB Electrolux, Sweden thereby enhancing its capabilities in both India and overseas. He has led Videocon to foray into exploration and production of Oil business in India and participated in a JV in the Ravva Oil Fields and recently acquired Brazil ’s Encana Brazil Petroleo Limitada jointly with BPCL.

Mr. Dhoot has a vision to lead Videocon and make it a Fortune 500 company in the next five years. The company intends to launch its mobile services on pan India basis targeting large subscribers in the next four years. Videocon strategies to strengthen its focus in oil and natural gas and, is pursuing opportunities in Oman , Australia and Timor Sea near Indonesia .

 

With his passion to make a powerful social impact, Mr. Dhoot has established a charitable hospital specializing in cancer and heart surgery for the underprivileged people. 

 

 

Sri Ravi Sharma

 

Ravi Sharma  is an accomplished Professional having Over  10 years as CEO  and a total of 25 years experience at policy as well as  operational level with Telecom and  Satellite Industry in India and Asia . He is Founder & CEO of Phi Televentures with an objective to be “Angel Partners” of MNCs , VCs and PEs in India .

Ravi had held various responsibilities in sales, corporate strategy, customer support, project, business development and general management before becoming one of the youngest CEOs of Telecom MNC in India at the age of 37 years.

Before founding Phi Televentures , Ravi was CEO of Datacom, a company having pan India license to Operate GSM services.

Prior to Datacom , as CEO of Alcatel-Lucent in South Asia, Ravi was instrumental in turning around the company and achieving over 20 times business growth in 4 years thus making it one of the largest equipment suppliers in India .

Ravi has also worked with Europe *Star – A satellite JV of Alcatel and Loral, BT and UB Group. From starting up a new Indian company (The UB Group’s Telecom venture) to starting up Indian operations of MNCs (BT and Europe*Star) and from Joint Venture creation(UB Goldmine, Bharti BT  and Alcatel’s Wimax JV) to turnaround of a company (Alcatel South Asia), Ravi has worked with entire spectrum of Telecom and Broadcasting spectrum .

An IIT alumnus with a Masters in Business Administration, Ravi has also been a state level Sportsman (Badminton), key member of Dramatics team at University, Student Editor of University Magazine and a TV presenter of a National TV channel.

 

Regards

 

N K Goyal
President Communications & Manufacturing Association of India (CMAI)
Member Governing Council, Telecom Equipment & Services Export Promotion Council, Govt. of India
Director NFL  National Fertilizers Ltd., Govt. of India
Chairman India Trade Promotion Services, Dubai UAE