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(based on 28 reviews)
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Most Liked Positive Review
Very solid and well built air compressor
FYI there is 2 different models on Harbor Freight. One is Item #69285, and the other is this one. Both are similar but are not the same. This model is the newest version...Read complete review
FYI there is 2 different models on Harbor Freight. One is Item #69285, and the other is this one. Both are similar but are not the same. This model is the newest version and has a higher flow rate.This seems to be a design copy of the VIAIR 400P that sells for $170 on other sites. The construction is nearly identical. First thing you should do is buy some air compressor oil and lube up the O-rings (see manual). It's very important to lube them every 20 uses and replace after 500 hours. Also make sure the clamp wires are terminated correctly and secure. I also would get a different pressure gauge, as this one is not very accurate. I don't know what the duty cycle is on this but I haven't had it get hot or blow any fuses, even when starting and stopping while hose is attached.Overall a great value and I saved over $100 compared to the VIAIR 400P.
Most Liked Negative Review
Waste of time
the compressor turned on & worked for 20-30 seconds then blew it's internal fuse & stopped working. The hose stem that goes on the tire valve has to be screwed...Read complete review
the compressor turned on & worked for 20-30 seconds then blew it's internal fuse & stopped working. The hose stem that goes on the tire valve has to be screwed on & off - as opposed to just pressing a conventional hose fill port onto the tire valve stem, very inconvenient. Last, the gauge is completely off by 10+psi so you have to keep screwing the hose on & off the tire to check the pressure with a good gauge. I will return this product & don't want another one. Good idea - poor execution.
Reviewed by 28 customers
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(1 of 1 customers found this review helpful)
By willpower
from Columbus Ga
About Me Avid Do-It-Yourselfer
Comments about Pittsburgh Automotive 12Volt 150 PSI Compact Air Compressor:
I used this recent HF purchase to top off my RV tires...115 lbs each....I did notice it would run for so long and shut off....safety/temp thing Im sure. Let it alone...after some time it fired back up on its own and completed the psi needed. Got the ext warranty just in case!
Bottom Line Yes, I would recommend this to a friend
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works great
By kimmy
from Long Island NY
About Me Casual Do-It-Yourselfer
we use it to inflate my tires after we go on the beach. works great
By Vchat
from Jackson ms
Very quick, powerful & easy to use....inflated tire from 14psi to 35 psi in about a minute tops ...love it
great little unit, for topping off tires
By Ron
from Idaho, Utah, Arizona, Cali
I use this to top off trailer and truck tires to 50 psi and 80 psi, it's great, just rememberthe duty cycle is low, like 10 minutes on 30 min off... Buy the extended warranty..
Strong little compressor.
By Van
from Vero Bch. Florida
About Me Professional
Have used this little gem 6x. And it works quickly and efficiently.
from NC
I didn't expect it to work as well as it did, I was just looking for a backup to my more expensive pump. Low and behold it performed better. It ran MUCH cooler and getting the tires to 80 psi was painless. I will say that after 70 psi the rate of inflation slowed a bit but that's to be expected.I have eight tires on my camping rig that need 80 psi and this will be my go to pump.Ron
Works great!
By Robert
from SC
I know what I am about to say might void my positive review. I was unfortunate and was victim to a small sidewall puncture on my 50% used set of all terrain tires $$$$. Of course there was no repair, but a small leak that I monitored was the only damage. I bought this compressor instead of a used tire or brand new different tread depth replacement. I used it to fill my tire successfully a couple times a week. For a while..... Would highly recommend to even just have in the car in case you need air for just that one time you get a nail or screw. We all know how long a tow can take, and some like me don't have a spare when you upgrade the size of your tires.Sorry for the ones that got a lemon.
works great..used 2 times and no fails...
By yab
from det,mi
nice product
(0 of 1 customers found this review helpful)
Bought for rv
By Rush
from San Antonio, Tx
This little compressor works great only had it a month but so far exceeds expectations
Great compressor
By mike
from Santa Clarita,CA
I got this for my truck and it works well. I was looking at other compressors that were priced a lot higher and this does the same. Fills tire quickly just make sure you have your car running or you could have a dead battery! I do a lot of back road travel and carry this compressor and a tire plug kit
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The true cost of Broadwater cruise ship terminal revealed and it won't stack up without a mega-resort and casino
- From: Gold Coast Bulletin
- February 28, 2014
THE proposed cruise ship terminal will not financially stack up without high revenue from mega-resorts and a casino on public-owned land at Wavebreak Island and The Spit.
But because of its massive size, the project is set to cause unknown financial burdens on the taxpayer in terms of power, sewerage and road upgrade costs, and is not guaranteed to meet environmental requirements or community support.
After a two-year process, these are the confidential final findings from government and council experts on the Broadwater Marine Project.
The Bulletin can also reveal the panel that considered the tenders was a split of government and senior council bureaucrats.
Two senior state planning officers and a probity officer were joined by council economic development and major projects director Darren Scott and council executive co-ordinator of project feasibility and partnerships Richard Clarke. After the <i>Bulletin</i> revealed details of the losing bid by Queensland-based Australian Cruise Ports International, cruise ship terminal opponents asked why the more environmentally appealing proposal lost out to ASF Group.
The answers are in correspondence between Deputy Premier Jeff Seeney and Gold Coast Mayor Tom Tate.
Mr Seeney acknowledged that a "comprehensive assessment" had found one possible proponent, and it was technically possible to build the terminal inside the Broadwater.
But more detailed work was needed because he was not convinced the development had community support and could be "environmentally and economically sustainable" and "would not pose a risk on existing infrastructure".
"The Gold Coast City Council in conjunction with the possible proponent would need to fund and complete these preliminary environmental studies as well as address the other outstanding issues identified by the independent consultants during the assessment process to date," he wrote.
The "joint assessment panel" had found that the terminal's capital, operational and dredging costs would need to be "extensively cross-subsidised by income derived from other developments".
ASF had openly identified the need for a large-scale residential and resort development, Mr Seeney said.
For the cruise ship terminal bidders, the process became complicated after Premier Campbell Newman in October last year announced applications would be sought for three integrated resort-casinos with one to located in Brisbane.
ACPI became aware of this one month before its final presentation to the panel, and a casino was only offered as an option if the state wanted it.
For ACPI, its focus was on quickly delivering a terminal and appeasing cruise ship terminal opponents with a less intensive development plan.
By comparison, ASF put forward a financial case for a $5 billion project wanting not just more resorts, residential accommodation, marinas and commercial precincts but a 50-storey building and gaming venue.
Mr Seeney has told Cr Tate that a gaming licence would only be offered to ASF on the condition of "prior establishment and ongoing operation of a successful cruise ship terminal".
"However, the issue of a temporary casino licence will not be considered, and this will need to be addressed as part of the proposal," he advised the Mayor.
ASF will now need to change its development concept to remove the "staged casino land use development".Originally published as The secret cost of cruise terminal
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subset: commoncrawl


text:
STOCKTON - The San Joaquin County Bar Association confirmed Thursday that district attorney candidate Gary Grant Hickey was removed from the association's county-funded defense counsel program on May 6.
Legal issues have been mounting for the 64-year-old Hickey, who is running for district attorney against Deputy District Attorney Tori Verber Salazar in the June 3 election.
Hickey belonged to a list of attorneys the association commissioned to represent defendants who cannot afford representation. The program is funded by San Joaquin County.
But Hickey's own troubles with the law have been surfacing in recent months.
Hickey is charged with hit-and-run resulting in property damage after his vehicle reportedly struck a telephone pole and left the scene in August 2013. The case is being prosecuted by the state Attorney General's Office to avoid a conflict of interest.
Additionally, Lodi police have forwarded to prosecutors a DUI report and an assault report against Hickey.
Last week, the association verified Hickey's connection to the group no longer existed, but at that time, the association declined to confirm the effective date.
Following a written public records request by The Record, the association on Thursday said the termination date was May 6.
Location, ST | website.com


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League One champions Doncaster beat York 4-2 on penalties in the corresponding tie last season and beat Hull 3-2 at home in Round 2 before losing at Norwich in the third round.
Rochdale lost a seven-goal thriller to Barnsley at Spotland in Round 1 of last year's competition.
All ties are to be played during the week commencing August 5.
- Sports & Recreation


text:
Thomas Joseph Condon
Position: G
6-3, 255lb (190cm, 115kg)
Born: October 26, 1952 in Derby, CT
College: Boston Col.
Weighted Career AV (100-95-...): 49 (1511th overall since 1960)
High School: Notre Dame (CT)
Draft: Kansas City Chiefs in the 10th round (250th overall) of the 1974 NFL Draft.
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Spring is the ideal season for those of us hoping to incorporate more fresh, local ingredients into our healthy diets. Everywhere around the nation, the first blooms are bursting forth and tender young edibles are ready to eat. Celebrate the bounty of the spring harvest with recipes that make use of fresh fruits and vegetables straight from the garden. From garden-fresh salads with homemade dressings to hand-crafted cheeses and delectable desserts, our treasure trove of recipes will help you make the most of the season.
Borrow from the vegan playbook now and then to mix up your menu and enjoy plant-based meals.
+ Featured recipes: Green Curry Asparagus; Fiddleheads and Soba Noodle Primavera; Tomato and Zucchini Bulgur; Fennel, Spinach and Orange Salad
At the Serenbe Community just outside Atlanta, farm-to-table cuisine gives traditional southern favorites new life.
+ Featured recipes: Arugula, Pear, Pecan and Blue Cheese Salad with Apple Cider Vinaigrette; Southern Shepherd's Pie; Blueberry Cobbler
Flavorful, garden-fresh greens pack a powerhouse of vitamins and minerals. Make the most of them with these recipes.
+ Featured recipes: Vegetarian Lasagna; Mango Spinach Salad; Arugula and Asian Greens Salad; Asparagus, Mustard Greens and Kale Stir-Fry
Making homemade dressing is a breeze. Try one of our tasty, tried-and-true combinations to add some pizzazz to your salads.
+ Featured recipes: Roasted Tomato Vinaigrette; Roasted Shallot Blue Cheese Vinaigrette; Rhubarb Vinaigrette; Garlicky Green Goddess Vinaigrette
Perfect for spring, soft white cheeses are easy to make at home, and you'll never have them fresher! Try our treasure trove of cheese recipes to get started.
+ Featured recipes: Homemade Chèvre; Homemade Feta; Homemade Cream Cheese; Homemade Mozzarella
After a long winter, nothing's more gratifying than feeding your family freshly picked, nutrient-packed fruits and vegetables. Start reaping spring's rewards.
+ Featured recipes: Rainbow Swiss Chard with Toasted Garlic; Pea Soup; Buttermilk Panna Cotta with Cherry Compote
Easy-growing mint has many varieties. Experience the versatility of this herb with our buffet of many mint-themed recipes.
+ Featured recipes: Cucumber Mint Salad; Vietnamese Summer Rolls with Dipping Sauce; Grilled Salmon with Mint Butter; Apple Walnut Salad; Minted Carrots; Herbed Beer Bread
Enjoy the flavors of the season with recipes featuring young vegetables prepared minimally, allowing their flavors to shine.
+ Featured recipes: Maple Mustard and Tahini Glazed Carrots; Creamy Split Pea Soup with Meyer Lemon Zest and Thyme; Baby Bok Choy with Hot Sesame Oil and Lime
Spring is the perfect time to create a meal from local produce. Try this collection of recipes to showcase early-spring farmers market finds.
+ Featured recipes: Sweet Onion Quiche; Spring Green Salad with Shallot Vinaigrette; Herbed New Potatoes; Rhubarb Upside-Down Cake
+ In-Season Foods for Spring
Spring is the season for young and tender treats right from the garden. Find out what fruits, vegetables, herbs and other spring foods are in season right now.
+ A Field Guide to Salad Greens
From the bitter bite of zesty arugula to the cool, crisp crunch of iceberg, our guide to greens will help you use any local harvest to build a better salad.
+ Wild Foraging: Harvesting Food from the World Around You
Wild foods epitomize seasonal eating. Get in touch with nature and the seasonality of food by harvesting your own from the world around you.
+ Morel Hunting: How to Find Edible Wild Mushrooms
With a little guidance, morel hunting can be a rewarding endeavor. Learn where to find and how to identify edible wild mushrooms with these tips.
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MASTER MANIFESTORS OF MIRACULOUS VISIONby Anodea Judith We the unwilling, led by the unknowing,have done so much with so little for so long,we are now equipped to do the impossible with nothing. I'll start with the question of reality … Read more
The Chakras, Body Armor, and Global Transformation
Hey Chitheads! Chit is a Sanskrit for consciousness. So CHIT HAPPENS! Check out this fantastic interview I recently did with Jacob Kyle of Embodied Philosophy on Chakras, Body Armor, and Global Transformation. Learn about myths and psychological aspects surrounding these energy centers of the body, and … Read more
30 Years of Dancing Across the Rainbow Bridge
Remember when we couldn't trust anyone over 30? That was 50 years ago, and I was still in my teens, wistfully watching the news about Woodstock, still too young for my parents to let me go. Age 30 seemed like … Read more
Speculations on a Floating World
Here I am, my first day completely out to sea, on the Alaska Spiritual Cruise, where I have been invited as a speaker and yoga teacher. I have never been aboard a cruise ship before, never been to a place … Read more
Master Manifestors of Miraculous Vision
We the unwilling, led by the unknowing,have done so much with so little for so long, we are now equipped to do the impossible with nothing. I'll start with the question of reality itself. What is it, what is it … Read more
Aligning Your Sacred Core
We best access our core and our chakras through proper alignment. When this occurs, we not only align within ourselves, with more facility at experiencing the flow of Prana or Shakti, but simultaneously align with the basic order of … Read more
When the Sacred Gets Scrambled
Scared is what happens when the sacred gets scrambled.What does it mean to enter the sacred? Sacred is something that is essential, something with great meaning, something we can't do without. It is a moment of stillness so full we … Read more
Heaven on Earth: Skiing in the Dolomites
Click the picture to hear Anodea discuss how she defied all logic. We all have dreams. Dreams are how we would LOVE life to be. In fact we spend much of our time comparing our current reality to the reality … Read more
Charge: A New Way to Look at Energy Psychology
Everybody's talking about Energy Psychology these days. We seem to have finally figured out that the mind alone does not heal, and that the body is an essential component of mental health. We also know that allopathic medicine, while capable … Read more
What is Mind-Body Therapy?
Mind-Body Therapies by Anodea Judith Many are the clients who come to me from years of traditional therapy and say, "I've done all this work on myself and learned all about how my problems are connected with this and that … Read more


text:
- Report: #713308
Report - Rebuttal - Arbitrate
Complaint Review: Fiverr
FiverrInternet United States of America
Fiverr Scamming Sellers Internet
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I let it slide, though, because I knew I could bring my rating back up, and I did.
However, as it happened, I had to cancel a few more gigs because of getting sick again. Again, my rating went down.
Fiverr does not care about the people behind the gigs, they simply want their 20% (which is an exuberant amount of commission). They have jerked me around quite a bit. They make us wait 14 days until we can get our money, which is also outrageous.
Fiverr simply closed down my gig, without consulting me, without asking how we can resolve anything, without contacting me ONCE about there being any problem. They just closed it down because of a few cancellations in the past. That is bad business all around. And now my clients have been saying I'm a drama queen because of Fiverr closing down my account and my not wanting anything to do with them anymore.
Fiverr has cost me more than it has given me. I am quite disappointed in something that could be so great.
Please be cautious when buying or selling anything on Fiverr.
This report was posted on Ripoff Report on 04/03/2011 11:13 AM and is a permanent record located here: http://www.ripoffreport.com/r/Fiverr/internet/Fiverr-Scamming-Sellers-Internet-713308. The posting time indicated is Arizona local time. Arizona does not observe daylight savings so the post time may be Mountain or Pacific depending on the time of year.
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text:
Difference between revisions of "Robert Guerrero vs. Gamaliel Diaz (2nd meeting)"
From BoxRec
(No difference)
Revision as of 07:03, 20 September 2008
- Diaz, never down as a pro, was down twice in round one, both times by partial shoves. He was KOed by a left to the solar plexus.
- Diaz won rounds 3-5, and inflicted a cut over the left eye in round five, probably due to an accidental butt.
- Blows were Guerero 100/254 39%; Diaz 166/272 61%.


text:
Definition of tonne in English:
Another term for metric ton.
Example sentences
- This is a record as the average yield in the State is around four tonnes per hectare.
- We then visited this to discover that out of the six hundred tonnes, only about fifty tonnes were left by then.
- Hundreds of thousands of tonnes of cod were taken out each year, building up great fortunes for those that fished it.
Late 19th century: from French; compare with ton1.
Words that rhyme with tonnebegun, bun, done, Donne, dun, fine-spun, forerun, fun, gun, Gunn, hon, Hun, none, nun, one, one-to-one, outdone, outgun, outrun, plus-one, pun, run, shun, son, spun, stun, sun, ton, tun, underdone, Verdun, won
For editors and proofreaders
Syllabification: tonne
Definition of tonne in:
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= trending


text:
Wednesday, January 8, 2014
Jan Levine Earns Legal Writing's Highest Awards
January 8, 2014 in Law Schools, Meetings, Miscellaneous, Teaching | Permalink | TrackBack (0)
Monday, December 9, 2013
A Humorous Take on Email Disclaimers
By James Sinclair in McSweeneys, titled "Alright, Fine, I'll Add a Disclaimer to My Emails." Here's a taste:
The purpose of this disclaimer, in theory, is to protect the sender from whatever liability may result from the sender's own failure to communicate clearly or properly send an email, even though the sender, having obtained a formal legal education, is well aware that a generic email disclaimer, even one written with that ominous language of which lawyers are so fond, is unlikely to be enforced against a party lacking a sophisticated understanding of the legal principles surrounding said disclaimer, and that in the case of a party who does understand the legal principles surrounding said disclaimer, the disclaimer merely restates what said party already knows. This disclaimer is a catch-22.
For a little Monday humour, check out the full disclaimer here.
[Meredith R. Miller]
December 9, 2013 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)
Monday, December 2, 2013
Privacy Invasion? Facebook Has an App for That
Over at the Huffington Post, Sam Fiorella takes note of the egregious terms in Facebook Messenger's Mobile App Terms of Service. These terms include allowing the app to record audio, take pictures and video and make phone calls without your confirmation or intervention. It also allows the app to read your phone call log and your personal profile information. Of course, an app that can do all that is also vulnerable to malicious viruses which can share that information without your knowledge. But, of course, this is allowed only with your "consent."
[Nancy Kim]
December 2, 2013 in Current Affairs, E-commerce, Miscellaneous, True Contracts, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Sunday, November 24, 2013
Wrap Contracts Symposium: Response to Rustad, Zacks and Amato and Closing Thoughts
I want to thank all the experts who participated in last week's symposium on WRAP CONTRACTS: FOUNDATIONS AND RAMIFICATIONS . They raised a variety of issues and their insights were thoughtful, varied and very much appreciated. I also want to thank Jeremy Telman for organizing the symposium and inviting the participants.
Today, I'd like to respond to the posts by Michael Rustad, Eric Zacks and Theresa Amato. Eric Zacks emphasizes the effect that form has on users, namely that the form discourages users from reviewing terms. Zack notes that contract form may be used to appeal to the adjudicator rather than simply to elicit desired conduct from the user and that forms that elicit express assent - such as "click" agreements - help the drafter by aiding "counterfactual analysis surrounding the 'explicit assent'" issue. In other words, drafters may use contract forms to manipulate adjudicator's decisionmaking and not necessarily to get users to act a certain way. (This is a topic with which Zachs is familiar, having just written a terrific article on the different ways that drafters use form and wording to manipulate adjudicators' cognitive biases).
Both Michael Rustad and Theresa Amato focus, not on form, but on the substance of wrap contracts – the rights deleting terms that contract form hides so well. Amato comes up with an alternative term to wrap contracts – online asbestos – to highlight the not-immediately-visible damage caused by these terms. As a consumer advocate and an expert on how to get messages to the general public, Amato understands the need to overcome the inertia of the masses by communicating the harms in a way that can drown out the siren call of the corporate marketing masters. So yes, a stronger term may be required to jolt consumers out of their complacency although the real challenge will be getting heard and beating the marketing masters at their own game.
Michael Rustad notes that my doctrinal solutions fall short of resolving the problem of predispute mandatory arbitration and anti-class action waivers. He's right, of course, although I think reconceptualizing unconscionability in the way I propose (by presuming unconscionability with certain terms unless alternative terms exist or the legislature expressly permits the term) would reduce the prevalence of undesirable terms including mandatory arbitration and class-action waivers. Rustad, who has considerable expertise on this subject, mentions that many European countries are further along than we are in dealing with unfair terms. Many of those jurisdictions, however, also have legislation which limits class actions, tort suits or damages awards. In addition, they don't have the same culture of litigation that we do in this country. Wrap contracts have their legitimate uses, such as deterring opportunistic consumer behavior and enabling companies to assess and limit business risks. In order to succeed, any proposal barring contract terms or the enforceability of wrap contracts must also consider those legitimate uses.
I believe there is a place for wrap contracts and boilerplate generally but their legitimate uses are currently outweighed by illegitimate abuses of powers. Wrap contract doctrine has moved too far away from the primary objective of contract law – to enforce the reasonable expectations of the parties-- and my solutions were an attempt to move the train back on track. My focus was on doctrinal solutions but the problems raised by wrap contracts are complex and my solutions do not foreclose or reject legislative ones. I'm a contracts prof, so my focus naturally will be on contract law solutions (if you have a hammer, everything looks like a nail, I guess). Doctrinal responses have the advantage of flexibility and may be better adapted to dynamic environments than legislation which can be quickly outdated when it comes to technology or business practices borne in a global marketplace.
Admittedly, when it comes to wrap contracts, doctrinal flexibility hasn't really worked in favor of consumers, but that only makes it more important to keep trying to sway judicial opinion. I know there are those who question whether judges read legal scholarship, but I know that there are many judges (and clerks) who do. The case law in this area has spiraled out of control so that it makes no sense to the average "reasonable person" and has opened the door to the use of wrap contracts that exploit consumer vulnerabilities.
My book was not intended as a clarion call to rid the world of all wrap contracts; rather, it was intended to point out how much damage wrap contracts have done, how much more they can do, and to provide suggestions on how to rein them in and use them in a socially beneficial manner.
I'm grateful to have had the opportunity to hear the insightful comments of last week's highly respected line-up of experts and to share my thoughts with blog readers.
[Nancy Kim]
November 24, 2013 in Commentary, Contract Profs, E-commerce, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Thursday, November 21, 2013
Wrap Contracts Symposium: Response to Moringiello and Hartzog
It's my pleasure to respond to Tuesday's posts from Juliet Moringiello and Woodrow Hartzog. Juliet Moringiello asks whether wrap contracts are different enough to warrant different terminology. Moringiello's knowledge in this area of law is both wide and deep and her article (Signals, Assent and Internet Contracting, 57 Rutgers L. Rev. 1307) greatly informed my thinking on the signaling effects of wrap contracts. The early electronic contracting cases involved old- school clickwraps where the terms were presented alongside the check box and their signaling effects were much stronger than browsewraps. Nowadays, the more common form of 'wrap is the "multi-wrap," such as that employed by Facebook and Google with a check or click required to manifest consent but the terms visible only by clicking on a hyperlink. Because they are everywhere, and have become seamlessly integrated onto websites, consumers don't even see them. Moringiello writes that today's 25-year old is more accustomed to clicking agree than signing a contract. I think that's true and it's that ubiquity which diminishes their signaling effects. Because we are all clicking constantly, we fail to realize the significance of doing so. It's not the act alone that should matter, but the awareness of what the act means. I'm willing to bet that even among the savvy readers of this blog, none has read or even noticed every wrap agreement agreed to in the past week alone. I wouldn't have made such a bold statement eight years ago.
Woodrow Hartzog provides a different angle on the wrap contract mess by looking at how they control and regulate online speech. With a few exceptions, most online speech happens on private websites that are governed by "codes of conduct." In my book, I note that the power that drafting companies have over the way they present their contracts should create a responsibility to exercise that power reasonably. Hartzog expands upon this idea and provides terrific examples of how companies might indicate "specific assent" which underscore just how much more companies could be doing to heighten user awareness. For example, he explains how a website's privacy settings (e.g. "only friends" or authorized "followers") could be used to enable a user to specifically assent to certain uses. (His example is a much more creative way to elicit specific assent than the example of multiple clicking which I use in my book which is not surprising given his previous work in this area).
Hartzog also explains how wrap contracts that incorporate community guidelines may also benefit users by encouraging civil behavior and providing the company with a way to regulate conduct and curb hate speech and revenge porn. I made a similar point in this article. I am, however, skeptical that community guidelines will be used in this way without some legal carrot or stick, such as tort or contract liability. (Generally, these types of policies are viewed in a one-sided manner, enforceable as contracts against the user but not binding against the company). On the contrary, the law – in the form of the Communications Decency Act, section 230- provides website with immunity from liability for content posted by third parties. Some companies, such as Facebook, Twitter or Google, have a public image to maintain and will use their discretionary power under these policies to protect that image. But the sites where bad stuff really happens– the revenge porn and trash talking sites – have no reason to curb bad behavior since their livelihood depends upon it. And in some cases, the company uses the discretionary power that a wrap contract allocates to it to stifle speech or conduct that the website doesn't like. A recent example involves Yelp, the online consumer review company that is suing a user for posting positive reviews about itself. Yelp claims that the positive reviews are fake and is suing the user because posting fake reviews violates its wrap contract. What's troubling about the lawsuit, however, is that (i) Yelp almost never sues its users, even those who post fake bad reviews, and (ii) the user it is suing is a law firm that earlier, had sued Yelp in small claims court for coercing it into buying advertising. To make matters worse, the law firm's initial victory against Yelp (where the court compared Yelp's sales tactics to extortion by the Mafia) for $2,700 was overturned on appeal. The reason? Under the terms of Yelp's wrap contract, the law firm was required to arbitrate all claims. The law firm claims that arbitration would cost it from $4,000-$5,000.
I agree with Hartzog that wrap contracts have the potential to shape behavior in ways that benefit users, but most companies will need some sort of legal incentive or prod to actually employ them in that way.
[Nancy Kim]
November 21, 2013 in Commentary, Contract Profs, E-commerce, Miscellaneous, True Contracts, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 20, 2013
Wrap Contract Symposium: Response to Calo and Cherry
I'm thrilled to have the opportunity this week to engage with an outstanding line-up of scholars on the topic of wrap contracts. In today's post, I will respond to posts by Ryan Calo and Miriam Cherry.
Miriam Cherry observes that wrap contracts raise much of the same issues raised by contracts of adhesion and my book canvasses those similarities. But they also raise different issues, primarily because their digital form makes it easier for companies to abuse and for consumers to ignore and also because courts don't adequately recognize how form affects the behavior of both parties. The difference in form leads to a difference of degree so that it's virtually impossible (pun intended) to engage in any online activity without agreeing to the terms of an unreadable wrap contract. My proposals aim to respond to the ways in which form affects perception to get us closer to the underlying objective of contract law – to fulfill the reasonable expectations of the parties. The form of wrap contracts raises issues that are unique to them and consequently, call for different solutions - solutions that respond to the problem of form.
Ryan Calo focuses on the role of technological design in contract formation and enforcement which is not surprising given his extensive expertise and research in this area regarding effective notice. The way that technological design of contracts affects parties' behavior is underappreciated in the literature on contracts of adhesion. Calo observes that the potential for mischief through the use of standard terms is even worse than the examples I give in my book (this is a great relief since I am often accused of exaggerating the dangers of wrap contracts). As Calo notes here and elsewhere, the digital contracting environment has made it easier for companies to understand the consumer and so manipulate the consumer's perceptions and behavior. I agree and would like to respond to his wish that I had addressed the argument made by Scott Peppet and others (who I'll call "digital solutionists") who claim that this very environment might aid the consumer and that increased digitalization could ameliorate the limits of freedom of contract. I agree with the first part, but disagree with the second. Greater access to information and the digital landscape may, in many cases, aid consumers who can research products, announce their "likes" and dislikes, and tweet their dissatisfaction to attract the customer service departments of large companies. This shouldn't, however, influence the discussion regarding freedom of contract. There is a distinction to be made between the product or service that is the subject of the contract and the terms of the contract itself. The former is salient to consumers and they will often research that information before they act. For a variety of reasons, including cognitive biases but also tricky design employed by companies, the latter is not. Anyway, comparing terms does no good if the terms are all the same – it's the old fiction about "shopping for terms" reincarnated in digital form.
Even assuming that the current state of affairs changes and there is awareness and competition for contract terms, the consumer is already inundated with too much information online. Are we really going to impose a requirement or an expectation that they read through online reviews or download an app simply in order to understand the contract terms? Even if the reviews exist (which they may not for some products or companies) and even if they are accurate (which they may not be), they add a layer of complexity to consumer transactions which may hamper effective decision-making and aggravate cognitive biases. How much research is a consumer expected to do simply to be able to buy a product, bank or communicate online? And is that something we want as a society – wouldn't this negatively impact productivity, increase transaction costs for the consumer, and muck up the wheels of commerce (and isn't this why we tolerate standard form contracts in the first place, to improve productivity, reduce transaction costs and grease the wheels of commerce)?
Drafting companies have all the power in the digital contracting environment – they have the bargaining power of old school drafters of adhesive contracts but they also have the power to present the terms in a multitude of ways. They decide whether and how to attract user attention. They determine whether to use clickwraps, browsewraps, multi-wraps, graphics or sounds. They exercise that power in a way that meets very minimal legal requirements of notice. The onus is on the consumer to ferret out terms, chase down hyperlinks, understand dense legalese and reconcile conflicting language. Are we going to require even more of consumers, expecting them to "go beyond" the contract by reading online contract reviews and downloading the "compare contracts" app (assuming one exists)? Maybe digitalization or augmented reality will make it easier for consumers to compare terms --but it will likely make it more complicated especially when those terms are constantly changing thanks to modification at will provisions. Doesn't it make more sense to require the company to draft the terms so they are easy to find and understand? There's more to say about the digital solutionist view but I will leave that for another forum. For now, my response is that the digital solutionist view is actually part of the problem, rather than the solution because it, like wrap contract doctrine, demands nothing from drafting companies and creates more work for consumers, exacerbating the lopsided balance of burdens that currently exists.
[Nancy Kim]
November 20, 2013 in Books, Contract Profs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, November 18, 2013
What Harm Can A Wrap Contract Cause Anyway?
I'm enjoying the posts from Ryan Calo and Miriam Cherry about my book, Wrap Contracts: Foundations and Ramifications and plan to post a response later this week. A common question I get (after, Are these things really legal?) is What harm can these contracts cause anyway? Well, one woman claims that a company can use them to ruin your credit. The woman, Jen Palmer, ordered some trinkets from KlearGear.com but she claims that she never received them and canceled the payment. After she allegedly failed to reach someone at the company, she wrote a negative review of KlearGear.com on a consumer reporting website stating that they have "horrible" customer service. KlearGear allegedly emailed her, claiming that her negative review ran afoul of a non-disparagement clause in their online terms of sale. She says that they told her to remove the post or face a $3500 fine. Ms. Palmer was unable to get the post removed and alleges that KlearGear.com reported her to a credit bureau! She claims that she is now fighting the negative mark on her credit report which is preventing her from getting loans for a new car and house repairs.
I don't think the terms of sale are enforceable against Ms. Palmer but that's almost beside the point. Contracts are used in a variety of ways - one of those ways is to deter problems. Not many consumers are willing to fight to test the enforceabilty of a contract in court.
But I have a question: Why would a credit agency ding someone's record simply because they received a call from an online retailer about someone who wasn't even a customer breaching the terms of sale? I checked KlearGear's website and couldn't find the non-disparagement clause in their terms of sale- they might have removed it after the negative publicity or it might not be in another agreement that doesn't appear until a customer places an order. There's got to be more to this story...or else we've just entered a new era of abuse by wrap contracts.
[Nancy Kim]
November 18, 2013 in Current Affairs, Miscellaneous, True Contracts, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 13, 2013
A Bitter Cup
Starbucks lost an arbitration fight with Kraft Foods and is being fined nearly $2.8 billion. Yes, you read that right - that's billion with a B. At the center of a dispute was a 1998 contract that required Kraft to distribute and market Starbucks brand coffee to U.S. retailers. The agreement was supposed to terminate in 2014 but Starbucks didn't want to wait that long. It complained that Kraft wasn't doing a good job promoting its coffee and offered Kraft $750 million to terminate the contract. Kraft rejected but Starbucks ended it in 2011 anyway (and entered into a deal with Green Mountain Coffee Roasters) which led Kraft to commence arbitration proceedings.
Another reminder to think carefully about those long durations in contracts - you can never predict how things will go and it's a good idea to really think about those termination provisions.
[Nancy Kim]
November 13, 2013 in Current Affairs, Food and Drink, In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)
A Slam Dunk of a Deal
In a situation that underscores the importance of thinking twice about very long term contracts, the NBA wants to end a contract which requires it to pay two brothers a percentage of its broadcast revenues. Back in 1976, the Silna brothers owned an ABA franchise, the Spirits of St. Louis. When the ABA merged with the NBA, the Silnas agreed to this bargain - they would dissolve their team in exchange for 1/7 of the television revenues for the four ABA teams that were merged. The four teams were the Indiana Pacers, the San Antonio Spurs, the Brooklyn Nets and the Denver Nuggets.
Sure, back in 1976, the Silnas might have looked silly for giving up a huge buyout for something that seemed pretty worthless (the NBA wasn't even televised prime time) but now the deal is being called "the greatest sports deal of all time."
Not kidding about that "all time" either - the Silvas reportedly received $19 million under the contract last season and the contract term is "in perpetuity." Fat chance the NBA will be able to scream foul on the basis of lack of mutuality...
[Nancy Kim]
November 13, 2013 in Current Affairs, Games, In the News, Miscellaneous, Sports, True Contracts | Permalink | Comments (0) | TrackBack (0)
Thursday, October 31, 2013
Behavioral Economics and Halloween
According to this scary report from National Public Radio, children are not entirely rational. Well, perhaps we should not overstate the conclusions one can draw based on the relevant research. Children are only boundedly rational when it comes to Halloween candy.
A psychologist at Dartmouth College discovered that children were happier when they got a candy bar than they were when they got a candy bar and a piece of gum. This research calls into question our earlier assumption that more is better.
And it turns out that, according ot the same NPR report, Halloween candy is not the only realm in which people's responses to experiences can defy our expectations. It turns out that, while colonoscopies are bad, colonoscopies in which a tube is left inserted in the patient for a while, causing additional discomfort, are . . . (if you guessed worse, you're getting colder), at least according to a survey of patients on what they thought of the experience.
The trick (or treat) is to save the best (or the least bad) for last. If y0u are handing out candy tonight, and you don't want to get your house egged back into the stone ages, give the children some prunes, and then as they reach for their mace, offer a candy bar. They will leave happy and nominate you for a Nobel Prize. Similarly, if you are going to perform an invasive procedure on someone, make sure you have something less bad with which to follow it up.
October 31, 2013 in Commentary, Food and Drink, Miscellaneous | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 16, 2013
Arbitration Agreement Found Unconscionable
Just when you start to lose faith in the judiciary, a couple of cases come along that suggest that some judges are willing to exercise common sense. I blogged about Judge Koh's opinion regarding consent in a case involving Google and email scanning in a previous post. Today, I want to talk about a case that was even more delightful because it bucked the wave of arbitration clause cases ruling against consumers. In Clark v. Renaissance West, LLC, the Superior Court of Maricopa County found an arbitration clause substantively unconscionable and therefore unenforceable -- and the Court of Appeals affirmed!
The plaintiff was John H. Clark, an eighty-eight year old man who was admitted into a nursing facility owned by Renaissance West. After checking in, he signed an arbitration agreement which required him to arbitrate all disputes with Renaissance West. After he was discharged, he filed a complained alleging that while he was at the nursing facility, he had been neglected and consequently, suffered a severe pressure ulcer that required medical treatment and long term case. Renaissance West moved to dismiss and compel arbitration. The trial court held an evidentiary hearing at which Clark's expert witness testified that it would cost Clark approximately $22,800 in arbitrator's fees to arbitrate the case. The trial court ruled that based upon Clark's limited income (he was retired and living on a fixed income), the arbitration agreement was substantively unconscionable. The Court of Appeals agreed.
There were several noteworthy aspects to this case. First, the trial court found that the arbitration agreement was not procedurally unconscionable. The Agreement was a separate document from other paperwork signed at the time of admission, it was conspicuous and in bold font and large print. It was also not offered on a take-it-or-leave-it basis and it could have been rescinded within thirty days of signature. But, as Maxwell v. Fidelity held, you don't need both procedural and substantive unconscionability in Arizona. Substantive unconscionability will do.
The Court of Appeals noted that an arbitration agreement "may be substantively unconscionable if the fees and costs to arbitrate are so excessive as to 'deny a potential litigant the opportunity to vindicate his or her rights.'" The question of whether arbitration is prohibitively expensive depends "on the unique circumstances of each case" and courts consider the following factors.
The first is "the party seeking to invalidate the arbitration agreement must present evidence concerning the cost to arbitrate." This evidence "cannot be speculative," and must be based upon "specific facts showing with reasonable certainty the likely costs of arbitration." The court found that the expert testimony was adequate to establish the estimate cost of $22,800 in arbitrators' fees alone.
The second factor is that a party must make a "specific individualized showing as to why he or she would be financially unable to bear the costs of arbitration" based upon his or her specific income/assets. Here, the plaintiff testified that he was retired, living on a fixed income, and did not have any financial resources such as savings or stocks. His total monthly income of $4,630, consisted of social security benefits, a pension and veteran's assistance payments. The court deferred to the trial court's finding that in light of these facts, arbitration would be cost-prohibitive.
The third factor is "whether the arbitration agreement or the applicable arbitration rules references in the arbitration agreement permit a party to waive or reduce the costs of arbitration based on financial hardship." In this case, the arbitration agreement did not provide for a reduction or waiver of fees based upon financial hardship. Strike three.
Based upon an analysis of the three above factors, the court concluded that there was reasonable evidence to support the trial court's finding that plaintiff would be unable to afford to arbitrate his claims. Consequently, the arbitration agreement "effectively precludes Plaintiff from obtaining redress for any of his claims, and is therefore substantively unconscionable and unenforceable."
[Nancy Kim]
October 16, 2013 in Miscellaneous, Recent Cases | Permalink | Comments (0) | TrackBack (0)
Friday, October 11, 2013
Gmail Users and Email Spying
One of the dangers of constructive contractual consent (a foundational principle of wrap contract doctrine) is that it might be used to prove statutory consent and thereby strip unknowing consumers of rights provided by law. Scholars such as Wayne Barnes and Woody Hartzog have argued that constructive contractual consent can undermine privacy protections provided by federal law. While there aren't too many federal laws protecting consumer privacy, the ones that do exist generally provide that a practice is permissible if consumers consent. Google raised that very argument recently in its defense to a lawsuit that claimed that Google's practice of scanning users' emails violated federal and state wiretapping laws.
The Wiretap Act, as amended by the Electronic Communications Privacy Act, prohibits the interception of "wire, oral, or electronic communications," but it is not unlawful "where one of the parties to the communication has given prior consent to such interception." Plaintiffs argued that Google violated the Wiretap Act when it intentionally intercepted the content of emails to create profiles of Gmail users and to provide targeted advertising. One of Google's contentions was that Plaintiffs consented to any interception by agreeing to its Terms of Service and Privacy Policies. The court states:
"Specifically, Google contends that by agreeing to its Terms of Service and Privacy Policies, all Gmail users have consented to Google reading their emails."
Yes, that's right-- Google is arguing that by agreeing to its Terms of Service and Privacy Policies, you – yes YOU Gmail user – have agreed to allow Google to read your email!
Even more alarming, Google claims that non-Gmail users who have not agreed to its Terms of Services or Privacy Policies have impliedly consented to Google's interception when they send email to or receive email from Gmail users.
Thankfully, Judge Lucy Koh is nobody's fool. Without stepping into the muck and goo of wrap contract doctrine, she notes that the "critical question with respect to implied consent is whether the parties whose communications were intercepted had adequate notice of the interception." Then she does something astounding , admirable and all-too-rare - - she interprets adequate notice in a way that actually makes sense to real people:
"That the person communicating knows that the interception has the capacity to monitor the communication is insufficient to establish implied consent. Moreover, consent is not an all-or-nothing proposition."
Even with respect to Gmail users, she notes that "those policies did not explicitly notify Plaintiffs that Google would intercept users' emails for the purposes of creating user profiles or providing targeted advertising."
Judge Koh's nuanced opinion reveals an understanding of online consent that's based on reality. She notes that that "to the extent" that the user has consented to the Terms of Service, it is "only for the purposes of interceptions to eliminate objectionable content," not for targeted advertisements or the creation of user profiles. She analyzes the contract from the standpoint of a reasonable user, rather than blindly following the all-or-nothing-constructive consent model mindlessly adopted by ProCD-lemming courts.
The opinion states that "it cannot conclude that any party – Gmail users or non-Gmail users- has consented to Google's reading of email for the purposes of creating user profiles or providing targeted advertising." I think most reasonable people - Gmail users and non-Gmail users alike – would agree.
[Nancy Kim]
October 11, 2013 in Current Affairs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, October 7, 2013
Click to Assign Copyright
I've been meaning to blog about a Fourth Circuit opinion that went under noticed, although it should have raised alarm bells. That opinion, rendered in Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc.,722 F.3d 591 (July 17, 2013) held that copyright could be transferred via a clickwrap.
MRIS operates a website that offers a "multiple listing service" for a fee to real estate brokers and agents. Subscribers to the site can upload their real estate listings, including photographs. In order to submit their photographs they must click to indicate assent to the terms of use. The court doesn't specify exactly how this is done (and states in a footote that the "record is not clear as to the precise manner in which the TOU appears to subscribers).
The TOU states:
"All images submitted to the MRIS Service become the exclusive property of (MRIS). By submitting an image, you hereby irrevocably assign (and agree to assign) to MRIS, free and clear of any restrictions or encumbrances, all of your rights, title and interest in and to the image submitted. This assignment includes, without limitation all worldwide copyrights in and to the image, and the right to sue for past and future infringements."
The defendant, AHR, operates a website, NeighborCity.com which displays real estate listings using a variety of sources, including photographs taken from the MRIS website.
MRIS sued AHR for copyright infringement. Photographs are protected under the Copyright Act. Section 204 of the Copyright Act requires that transfers of copyright ownership require a writing that is signed by the owner. AHR argued that MRIS did not own the copyright to the photographs because its TOU failed to transfer those rights. The issue then was whether a subscriber who clicks agreement to a TOU has "signed" a "written transfer" of the copyright in a way that meets the requirement of Section 204. The Fourth Circuit found that "(t)o 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."
Given the reality that few read wrap contracts, holding that an author/creator can give up copyright with a click is alarming. The opinion is a prime example of a court doing what is arguably the right thing for reasons of business competition but creating an alarming precedent in the process. Shades of ProCD! Online businesses will certainly benefit from this decision, but creators - not so much. They may realize too late that when they clicked to upload content, they also assigned their rights to their work. This is especially problematic since the primary reason creators use some of these sites is to get publicity for their work. The bargain, in other words, may be quite different from what the creator might have intended.
So - all you creators out there - BEWARE and check out those terms before you click. They may not be as harmless as you think.
H/T to my former student, Leslie Burns and her blog.
[Nancy Kim]
October 7, 2013 in E-commerce, Miscellaneous, Recent Cases, Web/Tech | Permalink | Comments (2) | TrackBack (0)
Friday, September 20, 2013
Carnival Cruise and the Contracting of Everything
"By now, you've heard the stories of passengers urinating in bags, slipping on sewage, and eating stale cereal aboard the Carnival Cruise ship that was stranded in the Gulf of Mexico — not exactly the fun-filled cruise for which the passengers had signed up and paid." My post on "Carnival Cruise and the Contracting of Everything" is available here.
[Nancy Kim]
September 20, 2013 in Current Affairs, In the News, Miscellaneous, True Contracts | Permalink | Comments (0) | TrackBack (0)
Friday, September 6, 2013
A Recital of Consideration
I start my first year contracts course with consideration. For the first time, I'm also teaching a contracts drafting course. Based upon the contracts drafting texts that I reviewed, the general consensus seems to be that recitals of consideration are basically pointless. While I think that's somewhat true in that they don't contain performance obligations, it's misleading, too. Courts not only consider recitals in construing clauses and the parties' intent, a recital of consideration may create a rebuttable presumption or may estop a party from claiming lack of consideration. In other words, in some cases, it can save a party from a claim that consideration was insufficient.
A recent case involving a patent assignment, Network Protection Sciences v. Fortinet, 2013 WL 4479336 (N.D. Cal 2013), seemed to go even further when the court, applying Texas law, held that a recital was conclusive. The recital in question stated that the patent was assigned "for good and valuable consideration, the receipt of which is hereby acknowledged." The party contesting the assignment argued that it was invalid because it was "beyond dispute" that no consideration was paid for it. The court, applying Texas law, rejected that argument finding the recital conclusive and that "(e)ven if no actual consideration were paid…NPS's agreement to be bound by the choice-of-law provision would be deemed adequate consideration." In other words, according to the court, the recital is conclusive with respect to the issue of whether there was consideration for the assignment but even if it weren't, agreeing to the choice of law provision was sufficient consideration. Is this the law in Texas, is it unique to Texas, or did the judge make new law? Any contracts profs care to weigh in?
In any event, it seems that consideration wasn't the way to go anyway because (although the parties didn't raise the issue) the assignment seems to fall under Restatement section 332 regarding gratuitous assignments that are irrevocable if signed and delivered to the assignor. This makes sense to me because a written assignment can affect third parties who rely upon it.
The case is also noteworthy because it opens with a quote from a recent NYT oped, coauthored by Santa Clara law prof Colleen Chien, which discusses the problem of "patent trolls" (companies that buy up patents with the intent to sue for infringement, rather than to practice the patented invention). The court's decision denying the defendant's motion to dismiss the patent infringement action was a bit disappointing given the way it began its opinion and the less-than-admirable behavior of the plaintiffs and their trollish behavior in pursuing the action. Where are the activist judges when you need them?
[Nancy Kim]
September 6, 2013 in Miscellaneous, Recent Cases | Permalink | Comments (14) | TrackBack (0)
Wednesday, August 7, 2013
Response to Jeremy Telman's Post about Op-Ed on Wrap Contracts
This post responds to the thoughtful comments offered by my co-blogger Jeremy Telman in his post about my op-ed. As he hinted, an op-ed provides a great forum for raising issues to a larger, non-academic audience but it is hardly the place to be thorough. Jeremy's post gives me an opportunity to briefly touch upon the issues that I address in my forthcoming book. (Note: If you use the promotion code 31998 and click here you get a 20% discount).
Jeremy raised the issue of the inadequacy of doctrinal solutions. In fact, all of my proposed solutions are doctrinal. There are undoubtedly more effective way to achieve societal changes, but doctrine obviously matters and right now, the law of wrap contracts is a mess. It's in a mess in a lot of different ways, yet the courts seem to be in denial, repeating the refrain that wrap contracts are "just like" other contracts. This is simply not so. Much of my scholarship looks at how technology shapes behavior and argues that courts should consider the role of technology when they interpret and apply the law. With respect to wrap contracts, courts ignore the ways that digital form affects both user perception and drafter behavior (i.e. overuse). My proposed solutions seek to make the effects of the digital form part of the court's analysis.
One of these solutions, briefly mentioned in the op-ed and discussed in the book and elsewhere, is a "duty to draft reasonably" which acts to counter the burden of the "duty to read." The duty to draft reasonably has very little to do with getting consumers to read contracts – it's about getting companies to ask for less by making it less palatable for them to ask for more. As I explain in great length in my book, there are plenty of reasons why I am not a big fan of the duty to read –and why I think trying to get consumers to read is an inadequate solution. Consumers shouldn't be expected to read online contracts, at least, not as they are now drafted. Reading wordy online contracts is not efficient and would hurt productivity. It's also useless, since consumers can't negotiate most terms. Instead, we should try to get companies to present their contracts more reasonably/effectively. We should require them to signal the information in an effective manner, the way that road signs signal dangerous conditions. For example, I propose using icons, such as the danger icon that accompanies this post, to draw consumers' attention to certain information. Currently, courts construe "reasonable notice" to mean something other than "effective notice" – and this places too heavy a burden on consumers to ferret out information. A "duty to draft reasonably" shifts the focus from the consumer's behavior to the drafting company's behavior. Could the company have presented the information in a better way? And if so, why didn't it? This is a question that courts used to ask with paper contracts of adhesion – but for some reason, they have moved away from this with wrap contracts.
A related doctrinal adjustment that I propose in my book is specific assent. For terms that take away user rights (which I refer to as "sword" and "crook" provisions), the user should be forced to actively assent by, for example, clicking on an icon. The idea here is also not to get users to read, but to hassle them! Imagine having to click to give away each use of your data. What a pain – and that's the point. The incorporation of a transactional hurdle or burden damages the relationship between the website and the user – and the more hurdles, the more annoying it becomes to complete the transaction.
Both proposals try to signal the type of company to the consumer. A website full of danger icons sends a very different message than one with only one or two danger icons. A website which requires a user to click forty times to complete a transaction won't be around too long.
As for better solutions, there are ways to address specific problems by using third party tools and I am all in favor of technical solutions. For example, you can use duckduckgo or Tor to try to cover your tracks. But technical solutions have their shortcomings or limitations because they only address one part of the larger problem and it gets to be a bit like whack-a-mole as technology shifts and improves.
Ultimately, any comprehensive solution has to be implemented by the government – either the legislature or the judiciary. But it's up to us, the consumers, to raise the issue as one needing a solution and we can do this through the democratic process and by marching with our feet. I agree with Jeremy that there are problems with collective action – there are coordination and resource issues as well as cognition limits, but that doesn't mean we shouldn't do anything. I don't want to get into the thicket of that in this already too-long post, but I address this issue at great length in my book and propose that one way to deal with this is by reconceptualizing unconscionability.
Consumer advocacy groups and the websites referred to by Jeremy in his post certainly help with the collective action problem. They inspire us to get off the couch. Not easy when companies make it so comfortable for us to do nothing but that's the nature of the beast here – it's the same in other areas where consumers face the corporate marketing machinery and its expertise in manipulation. As Kate O'Neill notes in the comments to Jeremy's post, we contracts profs have a role which is to point out the inconsistencies and contradictions in judicial application of doctrine and propose better ways to evaluate legal issues. Some may scoff that judges don't read law review articles --or books written by academics-- but it's our job to keep trying.
[Nancy Kim]
August 7, 2013 in Commentary, Current Affairs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 24, 2013
Fox Broadcasting v. Dish Network - let's hop to the contract issues
The Ninth Circuit recently decided an interesting case involving video on demand – or is the Hopper a DVR? That was one of the questions at the heart of Fox Broadcasting Company v. Dish Network. (Jeremy Telman had previously blogged about the case when the complaint was first filed a year ago). At issue was the Dish Network's PrimeTime Anytime service which only works with the Hopper, a set top box with digital video recorder and video on demand functionalities. PrimeTime Anytime records Fox (and other) network shows and stores the recordings for a certain number of days (typically eight) on the Dish customer's Hopper. Dish does not offer video on demand from Fox (but see discussion below). Dish started to offer a new feature called "AutoHop" that allows users to skip commercials on shows recorded on PrimeTime Anytime (although it doesn't delete the commercials, the user can press a button to skip them). Fox sued Dish for copyright infringement and breach of contract and sought a preliminary injunction. The Ninth Circuit upheld the district court's denial of the motion. The copyright issues are interesting, but I'm going to skip over them using this blog's virtual AutoHop feature and get right to the contract issues, which are much more interesting to readers of this blog.
There were two agreements at issue here. There was a 2002 license agreement and a subsequent 2010 letter agreement (there were others but these were the two relevant ones). Pursuant to the 2002
agreement, Fox granted Dish a limited right to retransmit Fox's broadcast signal to Dish's subscribers. It also contained several restrictions and conditions and prohibited video on demand. A 2010 letter agreement, however, agreed to video on demand provided that Dish agreed to certain conditions, the primary one being that it couldn't show the content without commercials.
So the basic questions (overly simplified for blog purposes) were – did Dish distribute Fox video on demand content? If so, did it comply with the terms of the 2010 letter? (Okay, that's not exactly how the court or the parties put it, but those were the issues stripped down to their essence).
Fox argued that Dish breached this provision of the 2002 contract:
"EchoStar acknowledges andagrees that it shall have no right to distribute all or any portion of the
programming contained in any Analog Signal on an interactive, time-delayed, video-on-demand
or similar basis; provided that Fox acknowledges that the foregoing shall not restrict EchoStar's practice of connecting its Subscribers' video replay equipment."
The district court construed the word "distribute" as requiring a copyright work to "change hands" (analogous to under the Copyright Act). Because the copies remained in users' homes,they did not change hands and there was no distribution. Fox challenged this construction and argued that the prohibition against distribution meant that Dish would not make Fox programming available to its subscribers on the aforementioned basis. The Ninth Circuit found both Fox's and the district court's constructions plausible (yes I realize there's a distinction between interpretation and construction but I don't want to go there right now, although you may).
The Ninth Circuit withheld judgment on which construction was better but stated that "in the proceedings below, the parties did not argue about the meaning of 'distribute.' We express no view on whether, after a fully developed record and arguments, the district court's construction of 'distribute' will prove to be the correct one."
The court did, however, express skepticism that PrimeTime Anytime was not "similar" to video-on- demand (remember, the 2002 contract prohibited "video-on-demand or similar basis")(emphasis added by yours truly). The "distribution" of that, therefore, would violate the 2002 contract. Dish argued that its service was not "identical" to VOD but, as the Ninth Circuit noted, did not explain why it was not "similar." (Note: I hope all you contracts profs are feeling ever more relevant! And our students thought we were just making mountains out of molehills when we focused on the importance of contract language). The addition of that word "similar" might just save Fox when the case goes to trial. Especially since, as even the district court held, if PrimeTime Anytime is VOD, then Dish clearly breached the contract which prohibited skipping commercials. The district court, however, wasn't convinced that it was VOD. Rather, the district court concluded that it was a hybrid of DVR and VOD and "more akin" to DVR than VOD.
In other words, the district court's analysis went along these lines – the 2002 contract was not breached because there was no distribution of VOD (or similar) content. The 2010 contract was not breached because this was not VOD but DVR. In short, this was not VOD and there was no distribution of a VOD-like service.
Query if the 2010 amendment had adopted the "VOD or similar" language instead of just "VOD"; in other words, what if it permitted Dish to offer Fox's programming as VOD or "similar" service? My guess is that they specifically drafted it narrowly to include just "VOD" to limit the scope of the license – but that it ended up backfiring to exclude the conditions on "similar" services. Funny how drafting rules of thumb can sometimes come back to bite you. Note the problem was created because the definitions were not consistent in the 2002 and 2010 agreements – it created a gap regarding a service (a "VOD similar service") which required judicial construction. Distribution of VOD or similar services was prohibited under the 2002 contract but VOD was permitted under the 2010 provided commercials were not skipped. And what happens to showing (not distributing) "similar services to VOD"? Mind the gap!
There was a final issue regarding a "good faith" in performance type clause. The Ninth Circuit concluded that there was no evidence that Dish launched PrimeTime Anytime "because it was unwilling to comply with the requirements to offer Fox's licensed video on demand service, rather than because Dish lacked the technological capability to do so." Frankly, I'm not sure why this was not a bigger issue since it seems, at least to me, that Dish is trying to get around the "no commercial skipping" restriction in the 2010 agreement by using the Hopper.
The Ninth Circuit noted a few times that it was applying a "deferential standard of review" given the request for a preliminary injunction so I don't think Dish can rest easy just yet. I think Fox's case will eventually hinge upon how the contract issues are resolved. What is the meaning of "distribute"? (I don't know enough about how Dish technology works to determine whether distribution occurred. Even under the district court's definition, could it have occurred? Does rebeaming signals constitute distribution? Is the service analogous to a lease? I think there's room here). Is the PrimeTime Anytime service VOD or not? And isn't that 2002 agreement relevant in determining what the meaning of VOD is under the 2010 amendment? Finally, why did the court give the "good faith in performance of contract" such short shrift?
I didn't get to review the actual agreements, but I would look at what exactly is being licensed under the 2002 agreement. Does it exclude the VOD-like service or include it? The gap seems odd to me - it must be addressed in one of the agreements. What exactly does Dish have the right to do? That seems to me one of the keys to unlocking the "correct" interpretation of the contract - and help determine whether the obligation of good faith is being fulfilled.
The real hammer here is going to be contract renewal - if Dish pisses off Fox and the other networks then it may kiss its business goodbye if they don't renew their contracts. (As I mentioned, I haven't seen the contracts so don't know what the terms are).
As the court notes, the parties probably didn't contemplate a hybrid DVR and VOD (this is the old "anticipating the future and new technologies" problem that contract drafters have to which I've previously referred) I think the copyright issues weigh more heavily in favor of Dish whereas Fox has the better argument re the contract issues. Of course, the much larger policy issue is how to strike the balance between contract and copyright – a recurring issue since the late eighties…Generally, it's been advantage contracts.
[Nancy Kim]
July 24, 2013 in Current Affairs, In the News, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, July 15, 2013
Tracking and Data Collection - Coming to a Store Near You!
As Jeremy Telman noted in his post, the OUP website which sells my forthcoming book on wrap contracts contains a wrap contract that requires users to the site to accept cookies. This type of wrap is what I refer to as "contract as notice", and much better than what most websites do, which is implement a "notice as contract". The OUP website requires specific assent to a particular term which raises the salience of the term. My guess is that OUP provides this because its parents company is based in the U.K. which has better laws about this kind of stuff. Most US corporate websites throw a bunch of terms into a browse wrap to which the user is deemed to have given blanket assent. Visitors to OUP's website -- which requires specific assent -- are made aware of the cookies, whereas most visitors to other sites aren't even aware that a contract governs. This is the difference between effective notice and ineffective notice, aka contracts that nobody reads but that courts deem are still enforceable via constructive assent.
The real problem with not reading is the nature of the terms that go unread--if you don't read terms, what's to stop a company from piling them on, adding more intrusive privacy stripping terms and rights deleting provisions ( to use a Radin-esque term). According to case law, not much.
I set my browser to alert me when I visit a website with cookies and I just couldn't visit any site without having to press the "allow" icon several times. Now I allow first party cookies, and ask for a "prompt" from third parties. I wouldn't be able to use my computer otherwise.
And now, we have the pleasure of being tracked in person. This morning, the NYT reported that some physical stores have started testing technology that allows tracking of customers' movements by using their smart phone signals. Nordstrom tried the old "Notice as Contract" method, by posting a sign telling customers they were being tracked. Those customers who saw the sign were creeped out. How long before we get used to these notices - and start to ignore them? How long before they are so ubiquitous that we have as little choice as we do online to stop a company from tracking and collecting information about us?
BTW, you can't read the NYT article unless your browser is set to allow cookies.....
[Nancy Kim]
July 15, 2013 in In the News, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Thursday, July 11, 2013
Documentary on Terms of Use
There's a new documentary about...wait for it....contracts! Well, if you want to call terms of use "contracts" - which courts seem to want to do. Here's a link to an article in USA Today and a link to the the official trailer on YouTube (yes, I get the irony of posting a trailer to YouTube which you can't do without agreeing to their terms of use....). The clip contains some infuriating quotes from self-interested folks who want to perpetuate consumer ignorance of privacy looting. One of my favorites-to-hate is the lie that people don't care about privacy - if they did they would do something about it. But contracts profs know about bounded rationality and the limits of cognition - and we also know about lack of choice, the importance of contract design and effective v. ineffective notice.
I cover all of this ground (and more) in my forthcoming book but more on that later....
[Nancy Kim]
July 11, 2013 in In the News, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 3, 2013
A non-disparagement clause and a contract that pushes the limits without one
The NYT's (new) ethicist, Chuck Klosterman tackled the issue of non-disparagement clauses in last Sunday's magazine (you have to scroll down past the first question about the ethics of skipping commercials). Klosterman stated that, "(n)ondisclosure provisions that stretch beyond a straightforward embargo on business-oriented "trade secrets" represent the worst kind of corporate limitations on individual freedom — no one should be contractually stopped from talking about their personal experiences with any company." He adds, "You did, however, sign this contract (possibly under mild duress, but not against your will)." A non-disparagement clause, however, is quite different from a blanket nondisclosure provision - the ex-employee may presumably talk about her personal experiences, as long as she leaves out the disparaging remarks. "Mild duress" is an oxymoron since duress, by its definition, is not mild and if you sign something under duress, you are signing it against your will. Despite getting the nuances wrong, the advice -- which is basically to say nothing bad but say nothing good either -- is sound. Sometimes silence speaks volumes.
Non-disparagement clauses in settlement agreements are fairly common and I don't think they are necessarily outrageous (it is a settlement agreement afterall). That's not the case with this agreement, posted courtesy of radaronline and discussed at Consumerist. The agreement doesn't contain a non-disparagement clause but still manages to be overreaching. The agreement, purportedly from Amy's Baking Company , requires that its employees work holidays and weekends, and extracts a $250 penalty for no-shows. It also forbids employees from using cell phones, bringing purses and bags to work, and having friends and family visit during working hours. The contract also contains a non-compete clause, prohibiting employees from working for competitors within a 50 mile radius for one year after termination. What the agreement doesn't contain is a non-disparagement clause - and a clause prohibiting employees from sharing the terms of the agreement with others. My guess is that those clauses will probably show up in the next iteration of the contract....
[Nancy Kim]
July 3, 2013 in Current Affairs, Miscellaneous, True Contracts | Permalink | Comments (1) | TrackBack (0)


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OpenCloner Stream-Cloner 2.00 Build 300 | 14.5 MB
OpenCloner Stream-Cloner is an all-in-one leading stream downloader with powerful functions and fast speed. It allows you to download online movies, TV shows, flash and capture streaming video/audio whenever you want from the Internet. With Stream-Cloner, the downloaded online movies and captured streaming video/audio can be converted to various video and audio formats for freely enjoying on various media devices in fashion.


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The only way Gonzalez is leaving is if Walt cuts him. I can't imagine any team giving up anything of value for him, even if he has a healthy spring training.
I guess I'll take him if the padres are giving him away for box tops. The reds are not in a position where giving away real or future talent for a bunch of one year rentals is a good thing.
"Even a bad day at the ballpark beats the snot out of most other good days. I'll take my scorecard and pencil and beer and hot dog and rage at the dips and cheer at the highs, but I'm not ever going to stop loving this game and this team and nobody will ever take that away from me." Roy Tucker October 2010
The problem I see though, is that SD wants to shed salary. I think they'd probably prefer to give up Greene for nothing than take on AGon.
Is it worthwhile for the Reds if they could get Greene for a couple of B prospects with the Padres not paying any of Greene's salary? I'm not so sure.
It makes sense if Walt figures Greene is a good rebound candidate and if Walt would like to keep the guy around longterm. But for a one year rental, with AGon still hanging around in a meaningless year? Makes no sense.
I really think that AGon is immovable, which further complicates things.
Still, I don't see Greene as a headcase. I think the Padres poisoned the well. I think he's a great candidate for a change of scenery. Remember Edmunds was considered a problem child before he arrived in StL. Worth a roll of the dice if the Reds would be willing to pony up for the guy after this year (if he bounced back). It's not as if the Reds have a good longterm SS alternative.
Thank you Walt and Bob for bringing winning baseball back to Cincy -- it was nice while it lasted..
Nov. 13, 2007: One of the greatest days in Reds history: John Allen gets the boot!
Thank you Walt and Bob for bringing winning baseball back to Cincy -- it was nice while it lasted..
Nov. 13, 2007: One of the greatest days in Reds history: John Allen gets the boot!
Then how about:
-- Cincinnati dealing B prospect a Sam LeCure type for Greene, then sending AGon (along with Freel) and a couple better prospects to Detroit for Ordonez.
San Diego grabs salary relief, as does Detroit, while the Reds add talent essentially for free.
The prospects would come from a list below the Top 15 or so.
At least one starting arm-- I'm thinking a Maloney and/ or a Ramirez--
One near-ready bullpen arm-- perhaps a Fisher or a Roenicke
And one position player-- maybe Cozart or even Janish could fit the bill.
Helps all three teams, IMO.
"You can learn little from victory. You can learn everything from defeat."
-- Christy Matthewson
"Show me a good loser and I'll show you an idiot."
-- Leo Durocher
Players coming off serious injuries have zero value until they prove they're healthy and able to play well.then sending AGon (along with Freel)
"Baseball is a very, very complex business. It's more of a people business than most businesses." - Bob Castellini
Ordonez is not what the Reds need IMO.
- He turns 35 in January. So he's not a long term solution.
- He's been durable over the last three seasons, but left the country prior to that for surgery that he couldn't get done in the U.S. While it has been a success, his risk for injury coupled with his age makes him a dubious pickup.
- His D last year wasn't very good. Of his 146 games played, 12 games he was a DH or PH.
- Offensively the last 5 years he's had exactly one season better than Adam Dunn who would only cost the Reds money and not talent. Yes, I am beating the Dunn drum again.
Raisel Ghul, the Demon's Head
The eyes never lie.
Boras is saying the Tigers won't trade Ordonez.
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on 25-02-2014 02:38 PM
25-02-2014 03:10 PM - edited 25-02-2014 03:11 PM
Not enough information to offer help. For instance are you waiting for a first time activation or were your phone and broadband working and have just stopped?
If its the latter, what exchange are you on, several have problems at the moment.
on 25-02-2014 03:35 PM
Hi leona2009
Thank you for getting in touch.
Sorry to hear about the issue you're facing.
As Isitme1 has mentioned that you haven't given us enough information for us to assist you further.
Hope to hear from you soon.


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Definición de Cantonese en inglés:
Relating to Canton (Guangzhou), its inhabitants, their dialect, or their cuisine.
Oraciones de ejemplo
- The Cantonese dialect created the unique culture exemplified by Stephen Chow, and this is our pride.
- One of the manifestations of local identity is language and Hong Kong cinema, since the beginning of sound, was closely identified as a Cantonese dialect cinema.
- If they were from Sichuan, there was no question that they ate Sichuanese and not Cantonese food.
sustantivo (plural igual)
1A native or inhabitant of Canton.
Oraciones de ejemplo
- We restricted the study to individuals belonging to the two major dialect groups of Chinese in Singapore: the Hokkiens and the Cantonese.
- The striking thing about Guangzhou is that it is no longer the home of the Cantonese.
- Yet, picky Cantonese discovered years ago that X.O. Excellence brandy perfectly complements their favourite shark's fin soup.
2A form of Chinese spoken mainly in southeastern China (including Hong Kong). Also called Yue.
Oraciones de ejemplo
- Our local tour guide speaks Chinese (both Cantonese and putonghua), and he says that he has sufficient demand to keep busy every day of the week.
- Some West Coast and Hawaiian galleries take additional steps to ensure success with this market by hiring multilingual consultants who speak Japanese, Cantonese or Mandarin Chinese.
- Fluent in Mandarin, she was able to operate among the Hong Kong residents, who mainly speak Cantonese.
Palabras que riman con CantoneseAchinese, Ambonese, appease, Assamese, Balinese, Belize, Beninese, Bernese, bêtise, Bhutanese, breeze, Burmese, Castries, cerise, cheese, chemise, Chinese, Cingalese, Cleese, Congolese, Denise, Dodecanese, ease, éminence grise, expertise, Faroese, freeze, Fries, frieze, Gabonese, Genoese, Goanese, Guyanese, he's, Japanese, Javanese, jeez, journalese, Kanarese, Keys, Lebanese, lees, legalese, Louise, Macanese, Madurese, Maltese, marquise, Milanese, Nepalese, officialese, overseas, pease, Pekinese, Peloponnese, Piedmontese, please, Portuguese, Pyrenees, reprise, Rwandese, seise, seize, Senegalese, she's, Siamese, Sienese, Sikkimese, Sinhalese, sleaze, sneeze, squeeze, Stockton-on-Tees, Sudanese, Sundanese, Surinamese, Tabriz, Taiwanese, tease, Tees, telegraphese, these, Timorese, Togolese, trapeze, valise, Viennese, Vietnamese, vocalese, wheeze
For editors and proofreaders
División en sílabas: Can·ton·ese
Definición de Cantonese en:
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Every Marketing and DECA teacher should apply for this award!! You could win for the work you already do!! It awards educatiors that focus on helping students learn about entrepreneurship and free enterprise. The most common award is $7,500, but "one meritorious award of $15,000 may be made to an outstanding entry."
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Sanjay Memorial Institute of Technology, Berhampur
Hillpatna, Berhampur , Odisha - 760005
PHONE No.: 0680-226891-92, 93, 2270086
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The peredhil, or half-elves, are those whose parentage is of both human and elven blood. Genetically, they are half-elf, quarter-elf etc, but because of the Gift of Man which Eru gave to humans, things become slightly more complicated.
Any elf with some human blood has the right to claim the Gift of Man, and so becomes a Man. Those who choose not to accept this gift right away appear as elves until which time they do choose to accept this gift.
To help explain this concept better, let's look at a few of the mixed elf/human characters....
Dior was the son of Luthien and Beren. From his parents he had Human, Elven and Maian blood. He married and elf, Nimloth but was slain without making the choice of Man or Elf.
Elwing was the daughter of Dior. She married Earendil who being the son of Tuor and Idril was another half-elf. Of these two, Earendil wanted the gift of Man but Elwing would have preferred to live as an elf. In the end, after entering Valinor, Earendil was sent into the sky in his ship and is immortal.
Of their sons, Elrond and Elros, Elros chose the Gift of Man, married a mortal and died after 500 years. His line then became mortal too and none of his descendants were given the choice even though they had diluted elven blood in their veins.
Elrond chose the elven path, but even though he lived for thousands of years in Middle Earth, had he not gone to Valinor, he would have still been able to accept the Gift of Man and die should he want to. Evidently he did not see the benefits of Mortality over Immortality and seems pretty content to be an Elf forever.
The fact that Elrond chose the elven path, did not take the right of the Gift of Man away from his children, however. Even though Arwen, Elladan and Elrohir are approximately 13/16ths elven, the fact that 3/16ths of their blood is human gives them the right to accept the gift of Man.
After delaying this choice for almost 2800 years, Arwen accepted the Gift of Man when she fell in love with Aragorn, and so like him, became Mortal. Even though their children are half-elves, they will be mortal however, because both of their parents have accepted the Gift of Mortality.
Tolkien has never revealled the fate of Elrond's sons, whether they finally accepted the gift of Man or not.
I hope this has helped make things a little clearer for you. It is a matter of looking at both the genetics and whether the Gift of Man has been accepted.


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Bradley Cooper Let His Auburn Curls Flow Wild
On his 40th birthday.By Erica Schwiegershausen
On his 40th birthday.By Erica Schwiegershausen
Cute!By Sean Fitz-Gerald
Seriously, don't jump.By Sean Fitz-Gerald
She gets slap-happy.By Sean Fitz-Gerald
See Johnson's truly phenomenal duck face.By Sean Fitz-Gerald
A cappella gets creepy.By Sean Fitz-Gerald
You will never be able to un-hear Ricky Gervais's laugh.By Sean Fitz-Gerald
Peter Pan Sr. gets political.By Sean Fitz-Gerald
That piggy bank did look like it had chicken pox.By Sean Fitz-Gerald
Chan is a pretty good liar — er, actor.By Lindsey Weber
He rapped the entirety of "Alphabet Aerobics" by Blackalicious.By Anna Silman
Two suits in one day.By Erica Schwiegershausen
Sadly there was no lip-synching.By Anna Silman
"Osprey, I await. Prey upon my loins. Mount my torso like the bull of Poseidon."By Anna Silman
In which each has to guess the contents of the others' mystery box.By Anna Silman
On Fallon.By Anna Silman
In a game of "musical impressions" with Jimmy Fallon.By Anna Silman
"Does vodka really kill bees and wasps?"By Anna Silman
On The Tonight Show.By Anna Silman
He didn't die.By Jesse David Fox