e-Commerce Docket Sheet

A software license agreement was sufficiently definite to constitute a binding contract despite the parties having never agreed to the functional specifications at the time of the contract's execution. RedPrairie Corp. v. Jerome's Furniture Warehouse, 2007 U.S. Dist. LEXIS 71680 (E.D. Wisc. Sept. 26, 2007). The court granted the software company's summary judgment motion, confirming the existence and breach of the agreement, but found disputed issues of fact concerning the calculation of damages. The court found that although the functional specifications clarified and defined in greater detail the parties' respective obligations, the software license agreement was sufficiently definite concerning, among other things, the scope of the licensing agreement, the costs and fees to be paid by the customer, and the rights and obligations of the parties. The court noted that if the customer were concerned about the uncertainty of the program's interface with its existing software, it had the option of not signing the agreement until it received and reviewed the functional specifications.

The statute of frauds does not prevent enforcement of an oral settlement agreement concerning the transfer of land that was acknowledged on the record in court and accurately memorialized in a written transcript providing the terms of the agreement and the oral assents of the parties. In re Marriage of Fusao Takusagawa, 2007 Kan. App. LEXIS 926 (Kan. Ct. App. Sept. 7, 2006). The appeals court affirmed the lower court's decision to approve and enforce an oral separation agreement, holding that the statute of frauds does not apply to supervised settlements recited in open court. Among other reasons, the court found that that Kansas's adoption of the Uniform Electronic Transactions Act ('UETA') 'probably makes [the complaining party's] in-court statement the legal equivalent of a written signature for purposes of the statute of frauds.' The court reasoned that the court reporter's electronic capture of the party's oral assent appeared to constitute an electronic signature under the law and would satisfy the statute of frauds.

A business method for mandatory arbitration resolution that depends entirely on the use of mental processes is not patentable subject matter, even if it has practical application. In re Comiskey, 2007 U.S. App. LEXIS 22414 (Fed. Cir. Sept. 20, 2007). The circuit court affirmed the Board of Patent Appeals and Interferences' decision rejecting the applicant's claims, but remanded the matter back to the U.S. Patent and Trademark Office to determine whether the addition of a computer and modern communication devices to certain otherwise unpatentable mental processes would be obvious under the Patent Act. The court concluded that the business method that claimed a mental process untied to another category of patentable subject matter was unpatentable. However, the court recognized that some of the applicant's claims combined mental processes with a machine, the combination of which could produce patentable subject matter if such combination would have been non-obvious to a person of ordinary skill in the art.

A group of entities and individuals charged by the Federal Trade Commission ('FTC') with placing deceptive spyware that spawned pop-up messages on consumer computers have agreed to pay a $500,000 fine and enter into a consent agreement that bars future downloads without consumer consent, and prohibits misrepresentations to consumers concerning pop-up payment demands. FTC v. Digital Enterprises, Inc., d/b/a Movieland.com, No. CV06-4923 (C.D. Cal. settlement filed Sept. 11, 2007). According to the FTC's complaint, the defendants' Web sites caused a series of pop-up messages to appear on computer screens that indicated consumers had signed up for a 'free trial' that had expired, and demanded payment to make the messages disappear. The downloads, the FTC alleged, infected consumer computers with spyware that was difficult to remove, and featured pop-up messages that contained music, and could not be silenced or minimized.

An e-mail that expressed someone's desire to negotiate significant changes to the terms of an expiring contract, and that was responded to in e-mail by the other party to the contract, may constitute proper notice of termination under a contractual provision that required notice of termination by a 'delivery service that provides written delivery verification.' America's Collectibles Network, Inc. v. MIG Broadcast Group, Inc., 2007 U.S. Dist. LEXIS 62374 (E.D. Tenn. Aug. 23, 2007). The court declined to grant summary judgment, ruling that there were material issues of fact concerning, among other things, the effective termination of the contract alleged to have been breached. With respect to the sufficiency of e-mail notice in light of the notice-of-termination provision, the court noted the parties' prior course of dealing, including the conduct of negotiations by telephone and e-mail, and the continuation of the relationship in reliance on telephone and e-mail agreements.

The display of low-resolution photographs by a copyright owner on its stock-photography Web site, in order to offer the photographs for licensing, may violate the rights of a celebrity depicted in the photographs under the Illinois Right of Publicity Statute. Brown v. AMCI Pop Division, 2007 Ill. App. LEXIS 843 (Ill. App. Ct., First Dist. Aug. 2, 2007). The Illinois appeals court responded to questions certified by a trial court, concluding that the trial court was correct in declining to dismiss the celebrity's Illinois right-of-publicity claims. The court reasoned that the licensing of the photographs could be construed as a use of the celebrity's identity for a 'commercial purpose' within the meaning of the Illinois right of publicity statute. The appeals court also concluded that the celebrity's right-of-publicity claim with respect to the licensing of the photographs was not preempted by section 301 of the Copyright Act.

A domain-name registrar that had at least 5,000 California customers, and at one time owned or sold multiple domain names to California businesses that allegedly sent illegal spam, is subject to jurisdiction under California's long-arm statute. Silverstein v. E360 Insight, LLC, 2007 U.S. Dist. LEXIS 57695 (C.D. Cal. Aug. 6, 2007). The court denied the registrar's motion to dismiss for lack of personal jurisdiction, rejecting the argument that the use of a forum-selection clause in contracts with its customers entitles it to avoid personal jurisdiction in California. The court concluded that by creating continuing relationships with California residents, the registrar had purposely availed itself of California law. The court also commented that the registrar's contacts with the forum included the alleged offering of a privacy service that masks the identity of spammers who sent e-mails to California residents.

Software License Agreement Constitutes Contract
Even Without Functional Specs

A software license agreement was sufficiently definite to constitute a binding contract despite the parties having never agreed to the functional specifications at the time of the contract's execution. RedPrairie Corp. v. Jerome's Furniture Warehouse, 2007 U.S. Dist. LEXIS 71680 (E.D. Wisc. Sept. 26, 2007). The court granted the software company's summary judgment motion, confirming the existence and breach of the agreement, but found disputed issues of fact concerning the calculation of damages. The court found that although the functional specifications clarified and defined in greater detail the parties' respective obligations, the software license agreement was sufficiently definite concerning, among other things, the scope of the licensing agreement, the costs and fees to be paid by the customer, and the rights and obligations of the parties. The court noted that if the customer were concerned about the uncertainty of the program's interface with its existing software, it had the option of not signing the agreement until it received and reviewed the functional specifications.

The statute of frauds does not prevent enforcement of an oral settlement agreement concerning the transfer of land that was acknowledged on the record in court and accurately memorialized in a written transcript providing the terms of the agreement and the oral assents of the parties. In re Marriage of Fusao Takusagawa, 2007 Kan. App. LEXIS 926 (Kan. Ct. App. Sept. 7, 2006). The appeals court affirmed the lower court's decision to approve and enforce an oral separation agreement, holding that the statute of frauds does not apply to supervised settlements recited in open court. Among other reasons, the court found that that Kansas's adoption of the Uniform Electronic Transactions Act ('UETA') 'probably makes [the complaining party's] in-court statement the legal equivalent of a written signature for purposes of the statute of frauds.' The court reasoned that the court reporter's electronic capture of the party's oral assent appeared to constitute an electronic signature under the law and would satisfy the statute of frauds.

A business method for mandatory arbitration resolution that depends entirely on the use of mental processes is not patentable subject matter, even if it has practical application. In re Comiskey, 2007 U.S. App. LEXIS 22414 (Fed. Cir. Sept. 20, 2007). The circuit court affirmed the Board of Patent Appeals and Interferences' decision rejecting the applicant's claims, but remanded the matter back to the U.S. Patent and Trademark Office to determine whether the addition of a computer and modern communication devices to certain otherwise unpatentable mental processes would be obvious under the Patent Act. The court concluded that the business method that claimed a mental process untied to another category of patentable subject matter was unpatentable. However, the court recognized that some of the applicant's claims combined mental processes with a machine, the combination of which could produce patentable subject matter if such combination would have been non-obvious to a person of ordinary skill in the art.

A group of entities and individuals charged by the Federal Trade Commission ('FTC') with placing deceptive spyware that spawned pop-up messages on consumer computers have agreed to pay a $500,000 fine and enter into a consent agreement that bars future downloads without consumer consent, and prohibits misrepresentations to consumers concerning pop-up payment demands. FTC v. Digital Enterprises, Inc., d/b/a Movieland.com, No. CV06-4923 (C.D. Cal. settlement filed Sept. 11, 2007). According to the FTC's complaint, the defendants' Web sites caused a series of pop-up messages to appear on computer screens that indicated consumers had signed up for a 'free trial' that had expired, and demanded payment to make the messages disappear. The downloads, the FTC alleged, infected consumer computers with spyware that was difficult to remove, and featured pop-up messages that contained music, and could not be silenced or minimized.

An e-mail that expressed someone's desire to negotiate significant changes to the terms of an expiring contract, and that was responded to in e-mail by the other party to the contract, may constitute proper notice of termination under a contractual provision that required notice of termination by a 'delivery service that provides written delivery verification.' America's Collectibles Network, Inc. v. MIG Broadcast Group, Inc., 2007 U.S. Dist. LEXIS 62374 (E.D. Tenn. Aug. 23, 2007). The court declined to grant summary judgment, ruling that there were material issues of fact concerning, among other things, the effective termination of the contract alleged to have been breached. With respect to the sufficiency of e-mail notice in light of the notice-of-termination provision, the court noted the parties' prior course of dealing, including the conduct of negotiations by telephone and e-mail, and the continuation of the relationship in reliance on telephone and e-mail agreements.

The display of low-resolution photographs by a copyright owner on its stock-photography Web site, in order to offer the photographs for licensing, may violate the rights of a celebrity depicted in the photographs under the Illinois Right of Publicity Statute. Brown v. AMCI Pop Division, 2007 Ill. App. LEXIS 843 (Ill. App. Ct., First Dist. Aug. 2, 2007). The Illinois appeals court responded to questions certified by a trial court, concluding that the trial court was correct in declining to dismiss the celebrity's Illinois right-of-publicity claims. The court reasoned that the licensing of the photographs could be construed as a use of the celebrity's identity for a 'commercial purpose' within the meaning of the Illinois right of publicity statute. The appeals court also concluded that the celebrity's right-of-publicity claim with respect to the licensing of the photographs was not preempted by section 301 of the Copyright Act.

A domain-name registrar that had at least 5,000 California customers, and at one time owned or sold multiple domain names to California businesses that allegedly sent illegal spam, is subject to jurisdiction under California's long-arm statute. Silverstein v. E360 Insight, LLC, 2007 U.S. Dist. LEXIS 57695 (C.D. Cal. Aug. 6, 2007). The court denied the registrar's motion to dismiss for lack of personal jurisdiction, rejecting the argument that the use of a forum-selection clause in contracts with its customers entitles it to avoid personal jurisdiction in California. The court concluded that by creating continuing relationships with California residents, the registrar had purposely availed itself of California law. The court also commented that the registrar's contacts with the forum included the alleged offering of a privacy service that masks the identity of spammers who sent e-mails to California residents.