Published by LawTechie - October 14, 2011 - LawTechie

The US District Court for the Northern District of Illinois has issued a ruling this week which underscores the importance of properly implementing — not just drafting — a software license agreement or an internet end user license agreement. In Dunstan v. comScore, Inc., 11-cv-05807 (N.D. Ill. Oct 7, 2011), the court declined to uphold a software license agreement venue clause primarily because of bad implementation.

Plaintiffs sued defendant comScore in Illinois for improper use of their personal information which comScore obtained when plaintiffs downloaded comScore’s free software product. comScore sought to transfer the case to Virginia based on a venue clause in the software license agreement which plaintiff clicked-through prior to download. The court refused to allow the venue transfer, holding the agreement non-binding as against plaintiff.

The court’s reasoning, as mentioned above, underscores the importance of software license agreement implementation:

The court declines to infer that clicking a box acknowledging that a user has read an agreement indicates that the agreement was reasonably available to the user, particularly when the plaintiffs have alleged that the hyperlink to the agreement was obscured.

Certainly there is a legion of caselaw to support that the click-through end user license agreement is enforceable. However, plaintiff’s allegation that the hyperlink was obscured seemed to be the ticket for this ruling. The court further noted:

It is not reasonable to expect a user casually downloading free software to search for [an end user license agreement] if it is not immediately available and obvious where to obtain it.

The takeaway here is that it is not enough to draft a good end user license agreement. An integral part of the internet audit from the internet lawyer’s perspective is, in addition to writing the agreement, is to confirm that the client knows how and where to post it on its site, software download page, etc…

This case shows us that, when it comes to tech law, the importance of technical implementation of the legal service cannot be understated.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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