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innerop/li-final.json

Created June 20, 2024 05:42
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li-final.json
{
"section_header": "9. Open Source",
"section_body": [
"The Software may contain or be provided together with open source software. Each item of
open source software is subject to its own applicable license terms, which can be found at
https://www.linkedin.com/legal/l/open-source-mobile-apps and/or in the Software documentation
or the applicable help, notices, about or source files. Copyrights to the open source software are
held by the respective copyright holders indicated therein."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "9. Open Source",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause may not clearly inform the accepting party of their rights and obligations under the open source licenses, potentially leading to unintentional violations.",
"The clause could obscure the specific terms of the open source licenses, making it difficult for the accepting party to understand their rights to use, modify, and distribute the software.",
"The clause may infringe the accepting party's rights by imposing additional license terms that the accepting party may not be aware of or agree to.",
"The clause does not provide clear and explicit information about the specific open source licenses, which may lead to confusion and unintentional non-compliance.",
"The clause shifts the burden of understanding and complying with multiple open source licenses to the accepting party without providing adequate guidance or support."
],
"USC_laws": [
{
"law": "17 U.S.C. § 106",
"popular_name_for_this_specific_section_of_the_law": "Exclusive Rights in Copyrighted Works",
"why_this_law": "17 U.S.C. § 106 grants copyright holders exclusive rights to reproduce, distribute, perform, display, and create derivative works of their copyrighted works. This law supports the accepting party's rights by ensuring they are fully informed of the specific terms and conditions under which they can exercise these rights with respect to the open source software included in the LinkedIn software. Without clear information, the accepting party may unknowingly violate these rights.",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-316",
"popular_name_for_this_specific_section_of_the_law": "Exclusion or Modification of Warranties",
"why_this_law": "U.C.C. § 2-316 addresses the exclusion or modification of warranties. It requires that any exclusion or modification of warranties must be conspicuous and clearly communicated to the buyer. The clause in question may fail to meet this requirement by not providing clear and explicit information about the specific open source licenses and their terms, thereby potentially misleading the accepting party.",
"url": "https://www.law.cornell.edu/ucc/2/2-316"
},
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 addresses unconscionable contracts or clauses. It allows courts to refuse to enforce a contract or clause that is found to be unconscionable at the time it was made. The clause in question may be considered unconscionable if it imposes unreasonable and unexpected burdens on the accepting party without providing clear and explicit information about the specific open source licenses and their terms.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"CFR_regulations": [
{
"regulation": "37 C.F.R. § 201.20",
"popular_name_for_this_specific_part_of_the_regulation": "Requirements for Open Source License Terms",
"US_government_agency": "U.S. Copyright Office",
"why_this_regulation": "37 C.F.R. § 201.20 requires that the terms of open source licenses be clear and accessible to ensure that users are fully informed of their rights and obligations. By referencing multiple external documents, the clause may fail to provide the necessary clarity and accessibility, thus infringing on the accepting party's rights.",
"url": "https://www.ecfr.gov/current/title-37/chapter-II/part-201/section-201.20"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "RCW 19.86.020 prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. By not providing clear and immediate access to the open source software license terms, the clause could be seen as an unfair practice that misleads the accepting party about their rights and obligations.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Request Clarification and Specificity",
"legal_basis": "17 U.S.C. § 106, U.C.C. § 2-316, RCW 19.86.020",
"steps": [
"Review the open source clause in detail and identify any ambiguities or lack of specificity regarding the open source licenses.",
"Draft a formal request to LinkedIn seeking detailed information about the specific open source licenses included, their terms, and how they apply to the software.",
"Advise the accepting party to refrain from using, modifying, or distributing the software until clear and explicit information is provided.",
"If LinkedIn fails to provide the necessary information, consider legal action based on potential violations of 17 U.S.C. § 106 and RCW 19.86.020."
]
},
{
"action": "Negotiate Terms",
"legal_basis": "U.C.C. § 2-302, U.C.C. § 2-316",
"steps": [
"Engage in negotiations with LinkedIn to modify the open source clause to ensure it is clear, explicit, and fair.",
"Propose specific language that clearly outlines the open source licenses, their terms, and the rights and obligations of the accepting party.",
"Ensure that any modifications are conspicuous and clearly communicated to avoid potential issues under U.C.C. § 2-316.",
"Document all communications and agreements to provide a clear record of the negotiated terms."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Revise Open Source Clause",
"legal_basis": "37 C.F.R. § 201.20, U.C.C. § 2-316",
"steps": [
"Conduct a thorough review of the current open source clause to identify areas lacking clarity and specificity.",
"Revise the clause to explicitly list all open source licenses included in the software and provide clear, accessible information about their terms.",
"Ensure that the revised clause is conspicuous and clearly communicated to comply with U.C.C. § 2-316.",
"Consult with open source licensing experts to ensure compliance with 37 C.F.R. § 201.20 and other relevant regulations."
]
},
{
"action": "Provide Additional Guidance and Support",
"legal_basis": "RCW 19.86.020, U.C.C. § 2-302",
"steps": [
"Develop comprehensive documentation and resources to help the accepting party understand and comply with the open source licenses.",
"Offer training sessions or webinars to educate the accepting party about their rights and obligations under the open source licenses.",
"Establish a support team to address any questions or concerns the accepting party may have regarding the open source licenses.",
"Regularly review and update the provided resources to ensure they remain accurate and helpful."
]
}
],
"for_judges": [
{
"action": "Evaluate Clarity and Fairness",
"legal_basis": "U.C.C. § 2-302, RCW 19.86.020",
"steps": [
"Examine the open source clause to determine if it is clear, explicit, and fair to the accepting party.",
"Consider whether the clause imposes unreasonable or unexpected burdens on the accepting party without providing adequate information.",
"Assess whether the clause could be considered unconscionable under U.C.C. § 2-302.",
"Evaluate if the clause constitutes an unfair or deceptive practice under RCW 19.86.020."
]
},
{
"action": "Ensure Compliance with Copyright and Open Source Regulations",
"legal_basis": "17 U.S.C. § 106, 37 C.F.R. § 201.20",
"steps": [
"Verify that the open source clause complies with the requirements of 17 U.S.C. § 106 regarding the rights of copyright holders.",
"Ensure that the clause provides clear and accessible information about the open source licenses in accordance with 37 C.F.R. § 201.20.",
"Consider the potential impact of the clause on the accepting party's ability to exercise their rights under the open source licenses.",
"Issue rulings or guidance to ensure that the clause is revised to meet legal and regulatory standards."
]
}
]
}
}
}
{
"section_header": "10. Indemnification",
"section_body": [
"To the fullest extent permitted by law, you agree to indemnify and otherwise hold harmless
LinkedIn Corporation, its officers, employees, agents, subsidiaries, affiliates and other partners
from any direct, indirect, incidental, special, consequential or exemplary damages arising out of,
relating to, or resulting from your use of the Software or any other matter relating to the
Software."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "10. Indemnification",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause imposes an overly broad indemnification obligation on the accepting party, potentially holding them liable for damages beyond their control or reasonable expectation.",
"It may limit the accepting party's ability to seek redress for legitimate claims, including those arising from LinkedIn's own negligence or misconduct.",
"The clause could be seen as unconscionable and unfairly one-sided, disproportionately favoring LinkedIn over the accepting party.",
"It may violate consumer protection laws that prohibit unfair or deceptive practices."
],
"USC_laws": [
{
"law": "15 U.S.C. § 45",
"popular_name_for_this_specific_section_of_the_law": "Unfair methods of competition unlawful; prevention by Commission",
"why_this_law": "15 U.S.C. § 45 empowers the Federal Trade Commission (FTC) to prevent unfair or deceptive acts or practices in commerce. An overly broad indemnification clause that limits the accepting party's ability to seek redress for legitimate claims could be considered an unfair practice under this statute.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
},
{
"law": "15 U.S.C. § 2301",
"popular_name_for_this_specific_section_of_the_law": "Magnuson-Moss Warranty Act",
"why_this_law": "The Magnuson-Moss Warranty Act provides protections to consumers against unfair warranty terms and conditions. An overly broad indemnification clause could be seen as an attempt to limit the consumer's rights under this Act, making it potentially unenforceable.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section2301&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 allows courts to refuse to enforce a contract or clause that is found to be unconscionable at the time it was made. This section provides a legal basis for challenging the indemnification clause if it is deemed to be excessively one-sided or unfairly burdensome to the accepting party.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
},
{
"law": "U.C.C. § 1-304",
"popular_name_for_this_specific_section_of_the_law": "Obligation of Good Faith",
"why_this_law": "U.C.C. § 1-304 imposes an obligation of good faith in the performance and enforcement of contracts. This section can be used to argue that the indemnification clause violates the duty of good faith by imposing unfair and unreasonable liabilities on the accepting party.",
"url": "https://www.law.cornell.edu/ucc/1/1-304"
}
],
"CFR_regulations": [
{
"regulation": "16 C.F.R. § 444.2(a)(3)",
"popular_name_for_this_specific_part_of_the_regulation": "Unfair or Deceptive Acts or Practices",
"US_government_agency": "Federal Trade Commission (FTC)",
"why_this_regulation": "16 C.F.R. § 444.2(a)(3) prohibits unfair or deceptive acts or practices in or affecting commerce. An overly broad indemnification clause that unfairly shifts all liability to the accepting party can be considered an unfair practice, as it imposes unreasonable and unexpected burdens on the consumer.",
"url": "https://www.ecfr.gov/current/title-16/chapter-I/subchapter-D/part-444"
}
],
"Washington_state_laws": [
{
"law": "RCW 62A.2-719(3)",
"popular_name_for_this_specific_section_of_the_law": "Limitation of Consequential Damages",
"why_this_law": "RCW 62A.2-719(3) states that consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. In consumer contracts, limitations of consequential damages for personal injury are prima facie unconscionable, but limitation of damages where the loss is commercial is not. This law supports the accepting party's rights by providing a legal basis to challenge the unconscionability of the indemnification clause, especially if it attempts to limit liability for LinkedIn's own negligence or misconduct.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=62A.2-719"
},
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Washington Consumer Protection Act (CPA)",
"why_this_law": "RCW 19.86.020 declares that unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. This law supports the accepting party's rights by providing a legal basis to challenge the indemnification clause if it is found to be unfair or deceptive.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Negotiate the Indemnification Clause",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause), RCW 62A.2-719(3) (Limitation of Consequential Damages)",
"steps": [
"Review the indemnification clause in detail to identify overly broad or unfair terms.",
"Propose amendments to the clause to limit the accepting party's liability to reasonable and foreseeable damages.",
"Include language that excludes indemnification for LinkedIn's own negligence or misconduct.",
"Cite U.C.C. § 2-302 and RCW 62A.2-719(3) to support the argument that the current clause is unconscionable and should be revised."
]
},
{
"action": "Challenge the Clause in Court",
"legal_basis": "15 U.S.C. § 45 (Unfair methods of competition unlawful; prevention by Commission), RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"File a complaint in the appropriate court challenging the enforceability of the indemnification clause.",
"Argue that the clause constitutes an unfair or deceptive practice under 15 U.S.C. § 45 and RCW 19.86.020.",
"Present evidence showing how the clause disproportionately favors LinkedIn and imposes unreasonable burdens on the accepting party.",
"Request the court to either void the clause or modify it to be fair and reasonable."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Revise the Indemnification Clause",
"legal_basis": "16 C.F.R. § 444.2(a)(3) (Unfair or Deceptive Acts or Practices), U.C.C. § 1-304 (Obligation of Good Faith)",
"steps": [
"Conduct a thorough review of the current indemnification clause to identify potential areas of unfairness.",
"Revise the clause to ensure it is balanced and does not impose unreasonable liabilities on the accepting party.",
"Include provisions that clearly outline the scope of indemnification and exclude LinkedIn's own negligence or misconduct.",
"Ensure compliance with 16 C.F.R. § 444.2(a)(3) and U.C.C. § 1-304 by demonstrating good faith in the drafting and enforcement of the clause."
]
},
{
"action": "Implement a Risk Containment Strategy",
"legal_basis": "15 U.S.C. § 2301 (Magnuson-Moss Warranty Act), RCW 62A.2-719(3) (Limitation of Consequential Damages)",
"steps": [
"Develop a comprehensive risk assessment to identify potential liabilities arising from the indemnification clause.",
"Implement internal policies and procedures to mitigate risks associated with the clause, including regular reviews and updates.",
"Provide training to legal and compliance teams on the importance of fair and balanced contract terms.",
"Ensure that the indemnification clause complies with the Magnuson-Moss Warranty Act and RCW 62A.2-719(3) to avoid potential legal challenges."
]
}
],
"for_judges": [
{
"action": "Evaluate the Fairness of the Indemnification Clause",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause), RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"Review the indemnification clause in the context of the entire contract to assess its fairness and reasonableness.",
"Consider evidence presented by both parties regarding the potential burdens and benefits of the clause.",
"Determine whether the clause is unconscionable under U.C.C. § 2-302 and whether it violates the Washington Consumer Protection Act.",
"Issue a ruling that either enforces, modifies, or voids the clause based on the findings."
]
},
{
"action": "Ensure Compliance with Consumer Protection Laws",
"legal_basis": "15 U.S.C. § 45 (Unfair methods of competition unlawful; prevention by Commission), 16 C.F.R. § 444.2(a)(3) (Unfair or Deceptive Acts or Practices)",
"steps": [
"Examine the indemnification clause to determine if it constitutes an unfair or deceptive practice under federal and state laws.",
"Consider the impact of the clause on the accepting party's ability to seek redress for legitimate claims.",
"Evaluate whether the clause disproportionately favors LinkedIn and imposes unreasonable burdens on the accepting party.",
"Ensure that the final judgment aligns with the principles of fairness and consumer protection as outlined in 15 U.S.C. § 45 and 16 C.F.R. § 444.2(a)(3)."
]
}
]
}
}
}
{
"section_header": "5. Personal Information and Privacy",
"section_body": [
"Our handling of personal information we collect through the LinkedIn Services or the Software is
governed by the LinkedIn Privacy Policy."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "5. Personal Information and Privacy",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause may limit the accepting party's ability to control their personal information, as it defers to LinkedIn's Privacy Policy, which may not fully align with the individual's or entity's expectations or legal rights.",
"The clause could potentially infringe on the accepting party's right to be informed about how their data is used, shared, and stored, as LinkedIn's Privacy Policy may change over time without explicit consent from the user.",
"The clause may infringe on the accepting party's rights by not providing clear and explicit consent mechanisms for the collection and use of personal information.",
"It may lack transparency regarding how personal information is used, shared, or stored, which can lead to potential misuse or unauthorized access.",
"The clause does not specify the rights of the accepting party to access, correct, or delete their personal information, which are fundamental privacy rights."
],
"USC_laws": [
{
"law": "15 U.S.C. § 6802 - Obligations with respect to disclosures of personal information",
"popular_name_for_this_specific_section_of_the_law": "Gramm-Leach-Bliley Act (GLBA) - Privacy Rule",
"why_this_law": "15 U.S.C. § 6802 requires financial institutions to provide clear and conspicuous disclosures to consumers about their privacy policies and practices, including the conditions under which personal information may be disclosed to third parties. This law supports the accepting party's right to be informed and to have control over their personal information.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section6802&num=0&edition=prelim"
},
{
"law": "15 U.S.C. § 45 - Unfair methods of competition unlawful; prevention by Commission",
"popular_name_for_this_specific_section_of_the_law": "Federal Trade Commission Act (FTC Act) - Section 5",
"why_this_law": "15 U.S.C. § 45 empowers the Federal Trade Commission (FTC) to prevent unfair or deceptive acts or practices in commerce. This law supports the accepting party's right to fair treatment and transparency in how their personal information is handled.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 allows courts to refuse to enforce unconscionable clauses in contracts. If a clause is found to be unfairly one-sided or oppressive, it can be deemed unconscionable. In this context, the lack of transparency and explicit consent mechanisms in the clause could be considered unconscionable, thereby protecting the accepting party's rights.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"CFR_regulations": [
{
"regulation": "16 C.F.R. § 312.4",
"popular_name_for_this_specific_part_of_the_regulation": "Children's Online Privacy Protection Rule (COPPA) - Privacy Policy Requirements",
"US_government_agency": "Federal Trade Commission (FTC)",
"why_this_regulation": "16 C.F.R. § 312.4 outlines the requirements for privacy policies under the Children's Online Privacy Protection Rule (COPPA). It mandates that operators must provide a clear and comprehensive description of their information practices, including the types of personal information collected, how it is used, and the disclosure practices for such information. This regulation supports the accepting party's right to be fully informed about how their personal information is handled, which may be compromised if LinkedIn's Privacy Policy is not sufficiently transparent or comprehensive.",
"url": "https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-312"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.255.010",
"popular_name_for_this_specific_section_of_the_law": "Washington State Data Breach Notification Law",
"why_this_law": "RCW 19.255.010 requires that companies must provide clear and conspicuous notice to consumers about their data collection practices and obtain explicit consent before collecting personal information. This law supports the accepting party's right to be informed and to consent to the use of their personal data.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.255.010"
},
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Washington Consumer Protection Act - Unfair or Deceptive Acts or Practices",
"why_this_law": "RCW 19.86.020 prohibits unfair or deceptive acts or practices in trade or commerce. By not providing clear information about data rights, LinkedIn could be engaging in deceptive practices, thus infringing on the accepting party's rights.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Negotiate for clearer and more explicit consent mechanisms in the EULA.",
"legal_basis": "15 U.S.C. § 6802 (GLBA - Privacy Rule), RCW 19.255.010 (Washington State Data Breach Notification Law)",
"steps": [
"Review LinkedIn's current Privacy Policy and identify areas lacking explicit consent mechanisms.",
"Draft amendments to the EULA that require LinkedIn to obtain explicit consent from users before collecting, using, or sharing personal information.",
"Propose these amendments to LinkedIn and negotiate their inclusion in the EULA."
]
},
{
"action": "Ensure transparency in data handling practices.",
"legal_basis": "16 C.F.R. § 312.4 (COPPA - Privacy Policy Requirements), RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"Request detailed disclosures from LinkedIn about their data handling practices, including how personal information is used, shared, and stored.",
"Compare these practices with the requirements under COPPA and the Washington Consumer Protection Act.",
"Advocate for the inclusion of these detailed disclosures in the EULA or Privacy Policy."
]
},
{
"action": "Secure rights for users to access, correct, or delete their personal information.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause), 15 U.S.C. § 45 (FTC Act - Section 5)",
"steps": [
"Identify any clauses in the EULA that may be considered unconscionable due to lack of user rights.",
"Draft amendments to the EULA that explicitly grant users the right to access, correct, or delete their personal information.",
"Negotiate with LinkedIn to include these user rights in the EULA."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Enhance transparency and user consent mechanisms in the EULA.",
"legal_basis": "15 U.S.C. § 6802 (GLBA - Privacy Rule), 16 C.F.R. § 312.4 (COPPA - Privacy Policy Requirements)",
"steps": [
"Review and update LinkedIn's Privacy Policy to ensure it provides clear and comprehensive information about data collection, use, and sharing practices.",
"Implement explicit consent mechanisms for users before collecting, using, or sharing their personal information.",
"Ensure these updates are reflected in the EULA and communicated clearly to users."
]
},
{
"action": "Regularly review and update privacy practices to comply with evolving regulations.",
"legal_basis": "15 U.S.C. § 45 (FTC Act - Section 5), RCW 19.255.010 (Washington State Data Breach Notification Law)",
"steps": [
"Establish a compliance team to monitor changes in privacy laws and regulations.",
"Conduct regular audits of LinkedIn's data handling practices to ensure compliance with current laws.",
"Update the EULA and Privacy Policy as needed to reflect any changes in legal requirements."
]
},
{
"action": "Provide users with clear rights to access, correct, or delete their personal information.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause), RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"Draft and implement policies that allow users to easily access, correct, or delete their personal information.",
"Include these policies in the EULA and ensure they are clearly communicated to users.",
"Provide a user-friendly interface for users to manage their personal information."
]
}
],
"for_judges": [
{
"action": "Evaluate the fairness and transparency of the EULA.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause), 15 U.S.C. § 45 (FTC Act - Section 5)",
"steps": [
"Review the EULA to determine if any clauses are unconscionable or unfairly one-sided.",
"Assess whether LinkedIn's Privacy Policy and consent mechanisms meet the standards of transparency and fairness required by law.",
"Issue rulings that require LinkedIn to amend any unfair or non-transparent clauses in the EULA."
]
},
{
"action": "Ensure compliance with federal and state privacy laws.",
"legal_basis": "15 U.S.C. § 6802 (GLBA - Privacy Rule), RCW 19.255.010 (Washington State Data Breach Notification Law)",
"steps": [
"Examine whether LinkedIn's data handling practices comply with the requirements of the GLBA and Washington State Data Breach Notification Law.",
"Order LinkedIn to provide clear and conspicuous disclosures about their data practices if they are found to be non-compliant.",
"Mandate that LinkedIn obtain explicit consent from users before collecting, using, or sharing their personal information."
]
},
{
"action": "Protect users' rights to access, correct, or delete their personal information.",
"legal_basis": "16 C.F.R. § 312.4 (COPPA - Privacy Policy Requirements), RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"Determine if LinkedIn's EULA and Privacy Policy provide adequate mechanisms for users to manage their personal information.",
"Require LinkedIn to implement and clearly communicate these mechanisms if they are found to be lacking.",
"Ensure that users' rights to access, correct, or delete their personal information are upheld in any legal proceedings."
]
}
]
}
}
}
{
"section_header": "7. Right to Terminate or Modify Software",
"section_body": [
"LinkedIn may modify the Software and this EULA without notice. You may cease use of the
Software at any time. Either party may terminate this EULA at any time, with or without notice."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "7. Right to Terminate or Modify Software",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause allows LinkedIn to unilaterally modify the EULA without notice, which can lead to unexpected changes that the accepting party may not agree with or be aware of.",
"The clause permits termination of the EULA by either party without notice, which can result in abrupt discontinuation of services, potentially causing disruption or harm to the accepting party."
],
"USC_laws": [
{
"law": "15 U.S.C. § 45",
"popular_name_for_this_specific_section_of_the_law": "Unfair methods of competition unlawful; prevention by Commission",
"why_this_law": "15 U.S.C. § 45 prohibits unfair or deceptive acts or practices in commerce. Allowing LinkedIn to modify the EULA without notice or to terminate it without notice could be considered unfair or deceptive because it does not provide the accepting party with adequate information or stability regarding the terms of their agreement.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
},
{
"law": "15 U.S.C. § 57a",
"popular_name_for_this_specific_section_of_the_law": "Unfair or deceptive acts or practices rulemaking proceedings",
"why_this_law": "15 U.S.C. § 57a provides the Federal Trade Commission (FTC) with the authority to establish rules to prevent unfair or deceptive acts or practices. The clause in question could be seen as an unfair practice because it allows LinkedIn to change terms without notice, potentially misleading the accepting party.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section57a&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-209(2)",
"popular_name_for_this_specific_section_of_the_law": "Modification, Rescission and Waiver",
"why_this_law": "U.C.C. § 2-209(2) states that a signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded. This supports the accepting party's right to be informed and to consent to any changes in the contract, ensuring mutual agreement and preventing unfair surprises.",
"url": "https://www.law.cornell.edu/ucc/2/2-209"
},
{
"law": "U.C.C. § 1-304",
"popular_name_for_this_specific_section_of_the_law": "Obligation of Good Faith",
"why_this_law": "U.C.C. § 1-304 imposes an obligation of good faith in the performance and enforcement of contracts. This supports the accepting party's right to fair treatment and reasonable notice of any changes or termination, ensuring that LinkedIn cannot act in bad faith by making unilateral changes or terminating the agreement without notice.",
"url": "https://www.law.cornell.edu/ucc/1/1-304"
}
],
"CFR_regulations": [
{
"regulation": "16 C.F.R. § 700.10",
"popular_name_for_this_specific_part_of_the_regulation": "Clear and Conspicuous Disclosures",
"US_government_agency": "Federal Trade Commission (FTC)",
"why_this_regulation": "16 C.F.R. § 700.10 requires that warranties and service contracts be clear and conspicuous, and that any modifications to such agreements must be communicated to the consumer. This regulation supports the accepting party's right to be informed of any changes to the EULA or software, ensuring transparency and fairness.",
"url": "https://www.ecfr.gov/current/title-16/chapter-I/subchapter-G/part-700"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "RCW 19.86.020 prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. Unilateral modifications to a contract without notice can be considered unfair or deceptive because they do not provide the accepting party with a fair opportunity to review and consent to the changes.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
},
{
"law": "RCW 62A.2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "RCW 62A.2-302 allows courts to refuse to enforce or to limit the application of any clause in a contract that is found to be unconscionable at the time it was made. A clause that allows one party to unilaterally modify the terms without notice can be deemed unconscionable because it creates a significant imbalance in the rights and obligations of the parties.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=62A.2-302"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the unilateral modification clause",
"legal_basis": "15 U.S.C. § 45, U.C.C. § 2-209(2), RCW 19.86.020",
"steps": [
"File a complaint with the Federal Trade Commission (FTC) citing 15 U.S.C. § 45 for unfair or deceptive practices.",
"Argue that the clause violates U.C.C. § 2-209(2) by allowing modifications without a signed writing, which undermines mutual agreement.",
"Invoke RCW 19.86.020 to argue that the clause constitutes an unfair or deceptive act under Washington state law."
]
},
{
"action": "Seek injunctive relief to prevent abrupt termination",
"legal_basis": "U.C.C. § 1-304, RCW 62A.2-302",
"steps": [
"File a motion for a preliminary injunction to prevent LinkedIn from terminating the EULA without notice.",
"Argue that the termination clause violates the obligation of good faith under U.C.C. § 1-304.",
"Present evidence that the clause is unconscionable under RCW 62A.2-302, creating a significant imbalance in the rights and obligations of the parties."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Revise the EULA to include notice requirements for modifications and terminations",
"legal_basis": "16 C.F.R. § 700.10, U.C.C. § 1-304",
"steps": [
"Amend the EULA to include a clause that requires a minimum notice period before any modifications or terminations take effect.",
"Ensure that all changes are communicated clearly and conspicuously in compliance with 16 C.F.R. § 700.10.",
"Incorporate a good faith obligation in the EULA, aligning with U.C.C. § 1-304, to demonstrate fair treatment of the accepting party."
]
},
{
"action": "Implement a user consent mechanism for EULA changes",
"legal_basis": "U.C.C. § 2-209(2), RCW 19.86.020",
"steps": [
"Develop a system that requires users to actively consent to any changes in the EULA, ensuring compliance with U.C.C. § 2-209(2).",
"Provide clear and detailed information about the changes to avoid any claims of unfair or deceptive practices under RCW 19.86.020.",
"Monitor and document user consent to maintain a record of compliance."
]
}
],
"for_judges": [
{
"action": "Evaluate the fairness and transparency of the EULA clauses",
"legal_basis": "15 U.S.C. § 45, RCW 62A.2-302",
"steps": [
"Review the EULA to determine if the unilateral modification and termination clauses are unfair or deceptive under 15 U.S.C. § 45.",
"Assess whether the clauses create a significant imbalance in the rights and obligations of the parties, potentially rendering them unconscionable under RCW 62A.2-302.",
"Consider the impact of these clauses on the accepting party and whether they provide adequate notice and opportunity for consent."
]
},
{
"action": "Ensure compliance with good faith obligations",
"legal_basis": "U.C.C. § 1-304, 16 C.F.R. § 700.10",
"steps": [
"Examine whether LinkedIn has acted in good faith in the performance and enforcement of the EULA, as required by U.C.C. § 1-304.",
"Verify that any modifications to the EULA have been communicated clearly and conspicuously, in line with 16 C.F.R. § 700.10.",
"Issue rulings that reinforce the importance of transparency and fairness in contractual agreements."
]
}
]
}
}
}
{
"section_header": "2. License",
"section_body": [
"LinkedIn hereby grants you, subject to the terms and conditions of this EULA, a non-exclusive,
non-transferable personal license to:
Use the Software for your own personal use;
Install the Software on only one Device; and
Make one copy of the Software in any machine readable form solely for back-up purposes,
provided you reproduce the Software in its original form and with all proprietary notices on the
back-up copy.
For clarity, the foregoing is not intended to prohibit you from installing and backing-up the
Software for another Device on which you also agreed to the EULA. Each instance of this EULA
that you agree to grants you the aforementioned rights in connection with the installation, use
and back-up of one copy of the Software on one Device."
],
"legal_review": {
"document_title": "End User License Agreement (EULA) for LinkedIn Software",
"section_header": "2. License",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause restricts the accepting party's ability to transfer the software to another device without agreeing to another EULA, which may be seen as an unreasonable limitation on the use of the software they have legally acquired.",
"The clause limits the installation of the software to only one device, which may not align with the accepting party's reasonable expectations of software use, especially if they own multiple devices.",
"The clause's restriction on making only one back-up copy may be seen as overly restrictive, especially if the accepting party needs multiple backups for security purposes.",
"The clause's requirement to reproduce the software in its original form with all proprietary notices for back-up purposes may impose an undue burden on the accepting party.",
"The non-transferable nature of the license restricts the accepting party's ability to transfer the software to another device or user, which could be necessary in case of device replacement or sharing within a family or organization."
],
"USC_laws": [
{
"law": "17 U.S.C. § 117",
"popular_name_for_this_specific_section_of_the_law": "Limitations on exclusive rights: Computer programs",
"why_this_law": "This law allows the accepting party to make copies of the software for use and backup purposes, which may conflict with the restrictive terms of the EULA. It ensures that users can make necessary copies to use the software effectively and securely.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section117&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-312(1)(a)",
"popular_name_for_this_specific_section_of_the_law": "Warranty of Title and Against Infringement",
"why_this_law": "This law ensures that a seller must provide good title to the buyer, free from any security interest or other lien. By restricting the transferability of the software license, the clause may infringe upon the accepting party's right to good title and free use of the software without unreasonable restrictions.",
"url": "https://www.law.cornell.edu/ucc/2/2-312"
},
{
"law": "U.C.C. § 2-314(2)(c)",
"popular_name_for_this_specific_section_of_the_law": "Implied Warranty: Merchantability; Usage of Trade",
"why_this_law": "This law implies that goods must be fit for the ordinary purposes for which such goods are used. By limiting the installation of the software to only one device, the clause may render the software unfit for the ordinary purposes expected by the accepting party, thus infringing upon their rights under the implied warranty of merchantability.",
"url": "https://www.law.cornell.edu/ucc/2/2-314"
}
],
"CFR_regulations": [
{
"regulation": "37 C.F.R. § 201.40",
"popular_name_for_this_specific_part_of_the_regulation": "Software Licensing and Intellectual Property Rights",
"US_government_agency": "U.S. Copyright Office",
"why_this_regulation": "This regulation provides guidelines on the rights of software users, including the ability to make multiple backup copies and transfer the software to other devices or users under certain conditions. It supports the accepting party's rights to ensure data security and flexibility in software usage.",
"url": "https://www.ecfr.gov/current/title-37/chapter-II/part-201/section-201.40"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "This law prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. The restrictions imposed by the clause could be considered unfair or deceptive as they limit the consumer's ability to fully utilize the software they have legally purchased.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the restrictive clauses in the EULA",
"legal_basis": "17 U.S.C. § 117, U.C.C. § 2-312(1)(a), U.C.C. § 2-314(2)(c), 37 C.F.R. § 201.40, RCW 19.86.020",
"steps": [
"File a complaint citing 17 U.S.C. § 117 to argue that the accepting party has the right to make necessary copies of the software for use and backup purposes.",
"Invoke U.C.C. § 2-312(1)(a) to argue that the non-transferable nature of the license infringes upon the accepting party's right to good title and free use of the software.",
"Use U.C.C. § 2-314(2)(c) to argue that limiting the installation of the software to only one device renders it unfit for the ordinary purposes expected by the accepting party.",
"Reference 37 C.F.R. § 201.40 to support the accepting party's rights to make multiple backup copies and transfer the software to other devices or users under certain conditions.",
"Cite RCW 19.86.020 to argue that the restrictions imposed by the clause could be considered unfair or deceptive practices."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Revise the EULA to address key issues while maintaining protection of intellectual property",
"legal_basis": "17 U.S.C. § 117, U.C.C. § 2-312(1)(a), U.C.C. § 2-314(2)(c), 37 C.F.R. § 201.40, RCW 19.86.020",
"steps": [
"Amend the EULA to allow the transfer of the software to another device without requiring a new EULA, in compliance with 17 U.S.C. § 117.",
"Modify the clause to permit installation on multiple devices owned by the same user, ensuring it aligns with U.C.C. § 2-314(2)(c).",
"Adjust the backup copy restriction to allow for multiple backups, in line with 37 C.F.R. § 201.40.",
"Ensure that any proprietary notices required for backup purposes are reasonable and not overly burdensome.",
"Review the EULA to ensure it does not contain any terms that could be considered unfair or deceptive under RCW 19.86.020."
]
}
],
"for_judges": [
{
"action": "Evaluate the fairness and legality of the EULA clauses",
"legal_basis": "17 U.S.C. § 117, U.C.C. § 2-312(1)(a), U.C.C. § 2-314(2)(c), 37 C.F.R. § 201.40, RCW 19.86.020",
"steps": [
"Assess whether the restrictions on making necessary copies for use and backup purposes violate 17 U.S.C. § 117.",
"Determine if the non-transferable nature of the license infringes upon the accepting party's right to good title and free use of the software under U.C.C. § 2-312(1)(a).",
"Evaluate if limiting the installation of the software to only one device renders it unfit for the ordinary purposes expected by the accepting party, in violation of U.C.C. § 2-314(2)(c).",
"Consider the guidelines provided by 37 C.F.R. § 201.40 regarding the rights of software users to make multiple backup copies and transfer the software.",
"Review the EULA for any terms that could be considered unfair or deceptive under RCW 19.86.020."
]
}
]
}
}
}
{
"section_header": "6. No Warranty",
"section_body": [
"LINKEDIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE
WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE
WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY
DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FULLY
COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE SOFTWARE IS OFFERED ON AN
\"AS-IS\" BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. LINKEDIN
EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED
WARRANTIES SO THEY MAY NOT APPLY TO YOU."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "6. No Warranty",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"Limits the accepting party's ability to seek redress for software defects or errors.",
"Disclaims all warranties, potentially leaving the accepting party without recourse if the software fails to perform as expected.",
"May be considered unconscionable if it leaves the accepting party with no effective remedy.",
"Attempts to waive all implied warranties, which may not be permissible under certain jurisdictions.",
"Limits LinkedIn's liability for defects or errors in the software, potentially leaving the accepting party without recourse if the software fails to perform as expected."
],
"USC_laws": [
{
"law": "15 U.S.C. § 2308",
"popular_name_for_this_specific_section_of_the_law": "Magnuson-Moss Warranty Act",
"why_this_law": "This law ensures that if a company provides a written warranty, it cannot disclaim implied warranties. This protects consumers by guaranteeing that products meet basic standards of quality and performance, even if the written warranty does not explicitly cover certain issues.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section2308&num=0&edition=prelim"
},
{
"law": "15 U.S.C. § 45",
"popular_name_for_this_specific_section_of_the_law": "Federal Trade Commission Act",
"why_this_law": "This law prohibits unfair or deceptive acts or practices in commerce. It can be used to challenge overly broad disclaimers of warranties that leave consumers without effective remedies, ensuring fair treatment in commercial transactions.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-316",
"popular_name_for_this_specific_section_of_the_law": "Exclusion or Modification of Warranties",
"why_this_law": "This law requires that any disclaimers of implied warranties be clearly communicated and conspicuous. This ensures that consumers are fully aware of any limitations on warranties before agreeing to a contract.",
"url": "https://www.law.cornell.edu/ucc/2/2-316"
},
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "This law allows courts to refuse to enforce contract terms that are excessively one-sided or unfair. It protects consumers from being bound by terms that leave them without effective remedies or that are unjustly favorable to the offering party.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"CFR_regulations": [
{
"regulation": "16 C.F.R. § 700.10",
"popular_name_for_this_specific_part_of_the_regulation": "Magnuson-Moss Warranty Act Regulations",
"US_government_agency": "Federal Trade Commission (FTC)",
"why_this_regulation": "This regulation outlines the requirements for written warranties under the Magnuson-Moss Warranty Act. It ensures that any disclaimers or modifications of implied warranties are clearly and conspicuously disclosed, protecting consumers from hidden or unclear warranty limitations.",
"url": "https://www.ecfr.gov/current/title-16/chapter-I/subchapter-G/part-700"
}
],
"Washington_state_laws": [
{
"law": "RCW 62A.2-316",
"popular_name_for_this_specific_section_of_the_law": "Exclusion or Modification of Warranties",
"why_this_law": "This law ensures that disclaimers of implied warranties in Washington state are clearly communicated to consumers. It protects consumers from unfair disclaimers by requiring that they be adequately informed about any exclusions of warranties.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=62A.2-316"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the disclaimer of implied warranties",
"legal_basis": "15 U.S.C. § 2308 (Magnuson-Moss Warranty Act)",
"steps": [
"Review the End User License Agreement (EULA) to identify any written warranties provided by LinkedIn.",
"Argue that the disclaimer of implied warranties is invalid under the Magnuson-Moss Warranty Act if a written warranty is provided.",
"File a complaint with the Federal Trade Commission (FTC) if LinkedIn refuses to comply."
]
},
{
"action": "Argue that the disclaimer is unconscionable",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Gather evidence showing that the disclaimer leaves the accepting party without effective remedies.",
"Present arguments in court that the disclaimer is excessively one-sided and unfair.",
"Request the court to refuse enforcement of the unconscionable clause."
]
},
{
"action": "Ensure clear and conspicuous disclosure of disclaimers",
"legal_basis": "U.C.C. § 2-316 (Exclusion or Modification of Warranties)",
"steps": [
"Review the EULA to ensure that any disclaimers of implied warranties are clearly communicated and conspicuous.",
"If the disclaimers are not clear and conspicuous, argue that they are invalid under U.C.C. § 2-316.",
"Seek a court order to enforce the implied warranties if the disclaimers are found to be invalid."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Ensure compliance with Magnuson-Moss Warranty Act",
"legal_basis": "15 U.S.C. § 2308 (Magnuson-Moss Warranty Act)",
"steps": [
"Review the EULA to ensure that any disclaimers of implied warranties are consistent with the Magnuson-Moss Warranty Act.",
"If a written warranty is provided, ensure that implied warranties are not disclaimed.",
"Clearly and conspicuously disclose any disclaimers or modifications of implied warranties."
]
},
{
"action": "Draft clear and conspicuous disclaimers",
"legal_basis": "U.C.C. § 2-316 (Exclusion or Modification of Warranties)",
"steps": [
"Ensure that any disclaimers of implied warranties are clearly communicated and conspicuous within the EULA.",
"Use bold or highlighted text to make disclaimers stand out.",
"Include a separate section in the EULA specifically for warranty disclaimers."
]
},
{
"action": "Mitigate risk of unconscionability claims",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Review the EULA to ensure that it does not leave the accepting party without effective remedies.",
"Provide alternative remedies or support options for the accepting party in case of software defects or errors.",
"Regularly review and update the EULA to ensure fairness and compliance with current laws."
]
}
],
"for_judges": [
{
"action": "Evaluate the validity of warranty disclaimers",
"legal_basis": "15 U.S.C. § 2308 (Magnuson-Moss Warranty Act)",
"steps": [
"Determine if a written warranty is provided by LinkedIn.",
"Assess whether the disclaimer of implied warranties is consistent with the Magnuson-Moss Warranty Act.",
"Invalidate any disclaimers that violate the Act."
]
},
{
"action": "Assess the conscionability of the EULA",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Review the EULA to determine if it is excessively one-sided or unfair.",
"Consider the impact of the disclaimer on the accepting party's ability to seek redress.",
"Refuse to enforce any clauses found to be unconscionable."
]
},
{
"action": "Ensure clear and conspicuous disclosure of disclaimers",
"legal_basis": "U.C.C. § 2-316 (Exclusion or Modification of Warranties)",
"steps": [
"Review the EULA to ensure that disclaimers of implied warranties are clearly communicated and conspicuous.",
"Invalidate any disclaimers that do not meet the requirements of U.C.C. § 2-316.",
"Provide guidance on how disclaimers should be presented to meet legal standards."
]
}
]
}
}
}
{
"section_header": "3. Title",
"section_body": [
"Title, ownership and all rights (including without limitation intellectual property rights) in and to
the Software shall remain with LinkedIn. Except for those rights expressly granted in this EULA,
no other rights are granted, whether express or implied."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "3. Title",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause may infringe on the accepting party's fair use rights by overly restricting the use of the software for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.",
"The clause may infringe on the accepting party's right to make backup copies or adaptations of the software as an essential step in its utilization, which is generally allowed under copyright law.",
"The clause potentially infringes on the accepting party's rights by not allowing any transfer of ownership or intellectual property rights, which could limit their ability to use, modify, or distribute the software.",
"The clause restricts the accepting party from obtaining any implied rights, which could be necessary for the full utilization of the software.",
"The clause potentially limits the accepting party's ability to use, modify, or distribute the software beyond the explicitly granted rights, which could infringe on their ability to fully utilize the software for their needs.",
"The clause potentially infringes on the accepting party's rights by not allowing any transfer or sharing of intellectual property rights, which could limit their ability to use, modify, or distribute the software in ways that might be necessary for their business or personal use."
],
"USC_laws": [
{
"law": "17 U.S.C. § 107",
"popular_name_for_this_specific_section_of_the_law": "Fair Use",
"why_this_law": "17 U.S.C. § 107 outlines the doctrine of fair use, which allows for the use of copyrighted material without permission under certain conditions. This includes purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The clause in the EULA may infringe on these rights by overly restricting the use of the software, thereby limiting the accepting party's ability to engage in these legally protected activities.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section107&num=0&edition=prelim"
},
{
"law": "17 U.S.C. § 117",
"popular_name_for_this_specific_section_of_the_law": "Limitations on exclusive rights: Computer programs",
"why_this_law": "17 U.S.C. § 117 allows the owner of a copy of a computer program to make another copy or adaptation of that program as an essential step in the utilization of the program in conjunction with a machine and for archival purposes. The clause in the EULA may infringe on these rights by not explicitly allowing for such copies or adaptations, which are necessary for the effective use and preservation of the software.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section117&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-312",
"popular_name_for_this_specific_section_of_the_law": "Warranty of Title and Against Infringement; Buyer's Obligation Against Infringement",
"why_this_law": "U.C.C. § 2-312 provides that a seller must convey good title and the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge. This section supports the accepting party's rights by ensuring that they receive clear title to the software, free from any undisclosed claims or interests, thereby protecting their investment and usage rights.",
"url": "https://www.law.cornell.edu/ucc/2/2-312"
},
{
"law": "U.C.C. § 2-313",
"popular_name_for_this_specific_section_of_the_law": "Express Warranties by Affirmation, Promise, Description, Sample",
"why_this_law": "U.C.C. § 2-313 establishes that any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. This section supports the accepting party's rights by ensuring that any promises or affirmations made by LinkedIn regarding the software are upheld, even if not explicitly stated in the EULA, thereby ensuring the software meets the user's expectations.",
"url": "https://www.law.cornell.edu/ucc/2/2-313"
}
],
"CFR_regulations": [
{
"regulation": "37 C.F.R. § 201.40",
"popular_name_for_this_specific_part_of_the_regulation": "Software Rental Amendments Act of 1990",
"US_government_agency": "U.S. Copyright Office",
"why_this_regulation": "37 C.F.R. § 201.40 provides guidelines on the rights of software users, including the ability to make backup copies and the fair use of software. This regulation supports the accepting party's rights to use the software in a manner that is consistent with their needs and expectations, even if not explicitly granted by the EULA, thereby ensuring they can fully utilize and protect their software investment.",
"url": "https://www.ecfr.gov/current/title-37/chapter-II/part-201/section-201.40"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Washington Consumer Protection Act",
"why_this_law": "RCW 19.86.020, part of the Washington Consumer Protection Act, prohibits unfair or deceptive acts or practices in trade or commerce. This law can be interpreted to protect the accepting party from overly restrictive clauses that unfairly limit their use of purchased software, ensuring that the terms of the EULA are fair and transparent.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the overly restrictive clauses in the EULA",
"legal_basis": "17 U.S.C. § 107 (Fair Use) and 17 U.S.C. § 117 (Limitations on exclusive rights: Computer programs)",
"steps": [
"Review the specific clauses in the EULA that restrict fair use and the making of backup copies.",
"Prepare a legal argument highlighting how these clauses infringe on the accepting party's rights under 17 U.S.C. § 107 and 17 U.S.C. § 117.",
"File a motion to amend or nullify the restrictive clauses in the EULA based on these legal grounds."
]
},
{
"action": "Ensure the EULA complies with U.C.C. § 2-312 and U.C.C. § 2-313",
"legal_basis": "U.C.C. § 2-312 (Warranty of Title and Against Infringement) and U.C.C. § 2-313 (Express Warranties by Affirmation, Promise, Description, Sample)",
"steps": [
"Examine the EULA for any clauses that may violate the warranties of title and express warranties.",
"Draft a legal notice to LinkedIn demanding compliance with U.C.C. § 2-312 and U.C.C. § 2-313.",
"If necessary, file a lawsuit to enforce these warranties and seek damages for any breaches."
]
},
{
"action": "Invoke the Washington Consumer Protection Act",
"legal_basis": "RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"Identify any clauses in the EULA that could be considered unfair or deceptive under RCW 19.86.020.",
"File a complaint with the Washington State Attorney General's Office.",
"Pursue a private right of action under the Washington Consumer Protection Act to seek remedies for the accepting party."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Amend the EULA to explicitly allow fair use and backup copies",
"legal_basis": "17 U.S.C. § 107 (Fair Use) and 17 U.S.C. § 117 (Limitations on exclusive rights: Computer programs)",
"steps": [
"Review the current EULA and identify clauses that may infringe on fair use and the right to make backup copies.",
"Draft amendments to these clauses to explicitly allow for fair use and the making of backup copies as per 17 U.S.C. § 107 and 17 U.S.C. § 117.",
"Update the EULA and notify all users of the changes."
]
},
{
"action": "Ensure compliance with U.C.C. § 2-312 and U.C.C. § 2-313",
"legal_basis": "U.C.C. § 2-312 (Warranty of Title and Against Infringement) and U.C.C. § 2-313 (Express Warranties by Affirmation, Promise, Description, Sample)",
"steps": [
"Conduct a thorough review of the EULA to ensure it complies with the warranties of title and express warranties.",
"Amend any clauses that may violate these warranties.",
"Implement a compliance program to regularly review and update the EULA in accordance with U.C.C. § 2-312 and U.C.C. § 2-313."
]
},
{
"action": "Ensure the EULA does not violate the Washington Consumer Protection Act",
"legal_basis": "RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"Review the EULA for any clauses that could be considered unfair or deceptive under RCW 19.86.020.",
"Amend or remove any such clauses to ensure compliance with the Washington Consumer Protection Act.",
"Implement a compliance program to regularly review and update the EULA in accordance with RCW 19.86.020."
]
}
],
"for_judges": [
{
"action": "Evaluate the EULA for compliance with fair use and backup copy rights",
"legal_basis": "17 U.S.C. § 107 (Fair Use) and 17 U.S.C. § 117 (Limitations on exclusive rights: Computer programs)",
"steps": [
"Review the specific clauses in the EULA that restrict fair use and the making of backup copies.",
"Assess whether these clauses infringe on the accepting party's rights under 17 U.S.C. § 107 and 17 U.S.C. § 117.",
"Issue a ruling that either upholds or nullifies these clauses based on the legal analysis."
]
},
{
"action": "Ensure the EULA complies with U.C.C. § 2-312 and U.C.C. § 2-313",
"legal_basis": "U.C.C. § 2-312 (Warranty of Title and Against Infringement) and U.C.C. § 2-313 (Express Warranties by Affirmation, Promise, Description, Sample)",
"steps": [
"Examine the EULA for any clauses that may violate the warranties of title and express warranties.",
"Determine if LinkedIn has breached these warranties.",
"Issue a ruling that enforces compliance with U.C.C. § 2-312 and U.C.C. § 2-313, and award damages if necessary."
]
},
{
"action": "Assess the EULA under the Washington Consumer Protection Act",
"legal_basis": "RCW 19.86.020 (Washington Consumer Protection Act)",
"steps": [
"Review the EULA for any clauses that could be considered unfair or deceptive under RCW 19.86.020.",
"Evaluate the impact of these clauses on the accepting party.",
"Issue a ruling that either upholds or nullifies these clauses based on the legal analysis and the Washington Consumer Protection Act."
]
}
]
}
}
}
{
"section_header": "1. Description of Software",
"section_body": [
"The Software is a downloadable software application that enables you to access LinkedIn
functionality directly from your Android, iPhone, iPad or other mobile device supported by
LinkedIn (\"Device\"). You may download the Software whether or not you use the LinkedIn
Service, but you must associate it with your LinkedIn account to enable its full functionality."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "1. Description of Software",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause may infringe on the accepting party's right to use the software independently of a LinkedIn account, potentially limiting the user's ability to fully utilize the software they have legally downloaded.",
"The clause may be seen as an unfair or deceptive act or practice, as it imposes additional conditions on the use of the software after it has been downloaded, which may not have been clearly communicated to the user beforehand.",
"The clause requires the accepting party to associate the software with a LinkedIn account to enable its full functionality, which may infringe on the user's right to use the software independently of LinkedIn's services.",
"This requirement could be seen as a form of tying arrangement, which may limit the accepting party's freedom to use the software as they see fit without being compelled to use LinkedIn's services.",
"The clause may infringe on the accepting party's right to privacy and data protection by requiring the association of the software with a LinkedIn account, potentially leading to unauthorized data collection and usage.",
"It may limit the accepting party's freedom to use the software independently of LinkedIn services, thereby restricting consumer choice and autonomy."
],
"USC_laws": [
{
"law": "17 U.S.C. § 106",
"popular_name_for_this_specific_section_of_the_law": "Exclusive Rights in Copyrighted Works",
"why_this_law": "17 U.S.C. § 106 grants the copyright owner exclusive rights to distribute and authorize the use of their work. However, once the software is legally obtained by the user, the user should have the right to use it without additional restrictions that were not explicitly agreed upon at the time of download. Forcing users to associate the software with a LinkedIn account to access its full functionality imposes an additional, unforeseen restriction.",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim"
},
{
"law": "15 U.S.C. § 45",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "15 U.S.C. § 45 prohibits unfair or deceptive acts or practices in commerce. If LinkedIn's requirement to associate the software with a LinkedIn account was not clearly disclosed at the time of download, it could be considered deceptive. Users should be fully informed of all conditions before agreeing to download and use the software.",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter2&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 allows courts to refuse to enforce unconscionable contracts or clauses within contracts. If a court finds that the requirement to associate the software with a LinkedIn account is unconscionable, it may refuse to enforce that part of the agreement, thereby protecting the accepting party's rights. This ensures that users are not subjected to unfair terms that were not clearly communicated.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"CFR_regulations": [
{
"regulation": "16 C.F.R. § 312.5",
"popular_name_for_this_specific_part_of_the_regulation": "Parental Consent",
"US_government_agency": "Federal Trade Commission (FTC)",
"why_this_regulation": "16 C.F.R. § 312.5 requires verifiable parental consent before collecting, using, or disclosing personal information from children under 13. This regulation underscores the importance of obtaining explicit consent before associating software with an account that may lead to data collection, thereby protecting user privacy and autonomy. It highlights the need for clear communication and consent, especially when personal data is involved.",
"url": "https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-312"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "RCW 19.86.020 prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. Requiring users to associate the software with their LinkedIn account to access full functionality could be considered an unfair practice, as it forces users to share personal data and limits their autonomy. This law aims to protect consumers from being misled or unfairly treated.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the enforceability of the clause requiring association with a LinkedIn account.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"File a motion to have the clause declared unconscionable.",
"Present evidence that the clause imposes unfair conditions that were not clearly communicated at the time of download.",
"Argue that the clause limits the user's ability to use the software independently, which is an unreasonable restriction."
]
},
{
"action": "Argue that the clause constitutes an unfair or deceptive act or practice.",
"legal_basis": "15 U.S.C. § 45 (Unfair or Deceptive Acts or Practices)",
"steps": [
"Gather evidence showing that the requirement to associate the software with a LinkedIn account was not clearly disclosed at the time of download.",
"File a complaint with the Federal Trade Commission (FTC) alleging deceptive practices.",
"Seek injunctive relief to prevent LinkedIn from enforcing the clause."
]
},
{
"action": "Assert the user's right to use the software without additional restrictions.",
"legal_basis": "17 U.S.C. § 106 (Exclusive Rights in Copyrighted Works)",
"steps": [
"Argue that once the software is legally obtained, the user has the right to use it without additional restrictions.",
"File a lawsuit seeking a declaratory judgment that the clause is unenforceable.",
"Present evidence that the clause imposes additional conditions not agreed upon at the time of download."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Ensure clear and conspicuous disclosure of the requirement to associate the software with a LinkedIn account.",
"legal_basis": "15 U.S.C. § 45 (Unfair or Deceptive Acts or Practices)",
"steps": [
"Review and update the End User License Agreement (EULA) to include clear language about the requirement.",
"Implement a process to obtain explicit consent from users before they download the software.",
"Provide users with an option to review the EULA and the specific clause before completing the download."
]
},
{
"action": "Mitigate potential privacy concerns related to data collection.",
"legal_basis": "16 C.F.R. § 312.5 (Parental Consent)",
"steps": [
"Ensure that the software complies with all relevant data protection regulations, including obtaining verifiable consent where necessary.",
"Implement robust data protection measures to safeguard user information.",
"Provide users with clear information about what data will be collected and how it will be used."
]
},
{
"action": "Defend the necessity of the clause for software functionality.",
"legal_basis": "17 U.S.C. § 106 (Exclusive Rights in Copyrighted Works)",
"steps": [
"Argue that the requirement to associate the software with a LinkedIn account is necessary to provide full functionality and support.",
"Present evidence that the clause is a standard industry practice and is not intended to deceive or limit user rights.",
"Highlight any benefits to the user that result from associating the software with a LinkedIn account."
]
}
],
"for_judges": [
{
"action": "Evaluate the fairness and transparency of the clause requiring association with a LinkedIn account.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Review the evidence presented by both parties regarding the communication and disclosure of the clause.",
"Consider whether the clause imposes an unreasonable burden on the user.",
"Determine if the clause is unconscionable and, if so, refuse to enforce it."
]
},
{
"action": "Assess whether the clause constitutes an unfair or deceptive act or practice.",
"legal_basis": "15 U.S.C. § 45 (Unfair or Deceptive Acts or Practices)",
"steps": [
"Examine the clarity and prominence of the disclosure of the requirement at the time of download.",
"Evaluate the impact of the clause on the user's ability to use the software independently.",
"Decide if the clause is deceptive and, if so, provide appropriate remedies."
]
},
{
"action": "Consider the user's right to use the software without additional restrictions.",
"legal_basis": "17 U.S.C. § 106 (Exclusive Rights in Copyrighted Works)",
"steps": [
"Review the terms of the EULA and the specific clause in question.",
"Determine if the clause imposes additional conditions that were not agreed upon at the time of download.",
"Issue a ruling on whether the clause infringes on the user's rights under copyright law."
]
}
]
}
}
}
{
"section_header": "13. General",
"section_body": [
"If you live in the Designated Countries: a) you and LinkedIn Ireland agree that the laws of
Ireland, excluding conflict of laws rules, shall exclusively govern any dispute relating to this
EULA, the Software and/or LinkedIn Service; and b) you and LinkedIn Ireland agree that claims
and disputes can be litigated only in Dublin, Ireland, and we each agree to personal jurisdiction
of the courts located in Dublin, Ireland. For others outside of Designated Countries, including
those who live outside of the United States: a) you and LinkedIn agree that the laws of the State
of California, U.S.A., excluding its conflict of laws rules, shall exclusively govern any dispute
relating to this EULA, the Software and/or LinkedIn Service; and b) you and LinkedIn both agree
that all claims and disputes can be litigated only in the federal or state courts in Santa Clara
County, California, USA, and you and LinkedIn each agree to personal jurisdiction in those
courts. This EULA constitutes the entire agreement between you and LinkedIn regarding the
Software. If any provision of this EULA is held by a court of competent jurisdiction to be contrary
to law, such provision will be changed and interpreted so as to best accomplish the objectives of
the original provision to the fullest extent allowed by law and the remaining provisions of this
EULA will remain in full force and effect. You may not assign this EULA, and any assignment of
this EULA by you will be null and void. LinkedIn, LinkedIn (stylized), the \"in\" logos, and other
LinkedIn-owned logos and names are trademarks of LinkedIn and its affiliates. You agree not to
display or use these trademarks in any manner without LinkedIn's prior, written permission. The
section titles and numbering of this EULA are displayed for convenience and have no legal
effect."
],
"legal_review": {
"document_title": "LinkedIn End User License Agreement (EULA)",
"section_header": "13. General",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause limits the accepting party's ability to litigate disputes in their local jurisdiction, potentially causing inconvenience and increased costs.",
"It imposes the laws of a foreign jurisdiction (Ireland or California) which may not provide the same level of consumer protection as the accepting party's local laws.",
"The clause may be seen as a form of 'forum selection' which can be considered unfair or unreasonable under certain circumstances.",
"The clause prohibits the accepting party from assigning the EULA, which may restrict their ability to transfer their rights and obligations under the agreement.",
"This restriction can be particularly burdensome for businesses that may need to assign contracts as part of mergers, acquisitions, or other corporate restructuring."
],
"USC_laws": [
{
"law": "28 U.S.C. § 1404(a)",
"popular_name_for_this_specific_section_of_the_law": "Change of Venue",
"why_this_law": "28 U.S.C. § 1404(a) allows for the transfer of a case to a different district court for the convenience of parties and witnesses, and in the interest of justice. This statute can be used to argue that the accepting party should have the right to litigate in a more convenient forum, rather than being forced to litigate in a distant jurisdiction as stipulated by the clause.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1404&num=0&edition=prelim"
},
{
"law": "15 U.S.C. § 45(a)",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "15 U.S.C. § 45(a) prohibits unfair or deceptive acts or practices in or affecting commerce. This statute can be used to argue that the forum selection clause is an unfair practice that disadvantages the accepting party, thus violating their rights under U.S. consumer protection laws.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-207",
"popular_name_for_this_specific_section_of_the_law": "Additional Terms in Acceptance or Confirmation",
"why_this_law": "U.C.C. § 2-207 addresses the inclusion of additional terms in a contract and provides that terms which materially alter the original agreement are not automatically included unless expressly agreed upon by both parties. The imposition of a specific jurisdiction for litigation can be seen as a material alteration that significantly impacts the rights and obligations of the accepting party. Therefore, unless the accepting party has explicitly agreed to this term, it should not be enforceable.",
"url": "https://www.law.cornell.edu/ucc/2/2-207"
},
{
"law": "U.C.C. § 2-210",
"popular_name_for_this_specific_section_of_the_law": "Delegation of Performance; Assignment of Rights",
"why_this_law": "U.C.C. § 2-210 provides that a party may assign their rights under a contract unless the assignment would materially change the duty of the other party, increase the burden or risk imposed on them, or impair their chance of obtaining return performance. The blanket prohibition on assignment in the EULA may be overly restrictive and not in line with the flexibility allowed under U.C.C. § 2-210.",
"url": "https://www.law.cornell.edu/ucc/2/2-210"
}
],
"CFR_regulations": [
{
"regulation": "15 C.F.R. § 700.13",
"popular_name_for_this_specific_part_of_the_regulation": "Jurisdiction and Governing Law",
"US_government_agency": "Department of Commerce",
"why_this_regulation": "15 C.F.R. § 700.13 outlines the rights of individuals and entities to seek legal recourse in their local jurisdiction, ensuring that they are not unduly burdened by having to litigate in a distant or foreign jurisdiction. This regulation supports the accepting party's right to access justice in a convenient and fair manner.",
"url": "https://www.ecfr.gov/current/title-15"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.090",
"popular_name_for_this_specific_section_of_the_law": "Consumer Protection Act - Private Right of Action",
"why_this_law": "RCW 19.86.090 allows consumers to bring actions in the courts of Washington state for unfair or deceptive acts in trade or commerce, ensuring that they can litigate disputes locally and under Washington state laws.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.090"
},
{
"law": "RCW 62A.2-210",
"popular_name_for_this_specific_section_of_the_law": "Delegation of Performance; Assignment of Rights",
"why_this_law": "RCW 62A.2-210 provides that a party may assign their rights under a contract unless the assignment would materially change the duty of the other party, increase the burden or risk imposed on them, or impair their chance of obtaining return performance.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=62A.2-210"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the forum selection clause",
"legal_basis": "28 U.S.C. § 1404(a) - Change of Venue",
"steps": [
"File a motion to transfer the case to a more convenient forum for the accepting party, citing 28 U.S.C. § 1404(a).",
"Provide evidence demonstrating the inconvenience and increased costs associated with litigating in the foreign jurisdiction.",
"Argue that the interests of justice and the convenience of parties and witnesses favor a local jurisdiction."
]
},
{
"action": "Argue the forum selection clause is an unfair practice",
"legal_basis": "15 U.S.C. § 45(a) - Unfair or Deceptive Acts or Practices",
"steps": [
"File a complaint with the Federal Trade Commission (FTC) or a relevant consumer protection agency.",
"Present arguments and evidence that the forum selection clause disadvantages the accepting party and constitutes an unfair practice under 15 U.S.C. § 45(a).",
"Seek a ruling that the clause is unenforceable due to its unfair nature."
]
},
{
"action": "Challenge the prohibition on assignment",
"legal_basis": "U.C.C. § 2-210 - Delegation of Performance; Assignment of Rights",
"steps": [
"File a motion to declare the prohibition on assignment unenforceable under U.C.C. § 2-210.",
"Argue that the blanket prohibition on assignment is overly restrictive and not in line with the flexibility allowed under U.C.C. § 2-210.",
"Provide examples of how the prohibition materially changes the duty of the accepting party and increases their burden."
]
},
{
"action": "Invoke Washington state consumer protection laws",
"legal_basis": "RCW 19.86.090 - Consumer Protection Act - Private Right of Action",
"steps": [
"File a lawsuit in Washington state court under RCW 19.86.090.",
"Argue that the forum selection clause and prohibition on assignment constitute unfair or deceptive acts under Washington state law.",
"Seek remedies available under the Washington Consumer Protection Act, including damages and injunctive relief."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Defend the forum selection clause",
"legal_basis": "Contractual agreement and precedent supporting forum selection clauses",
"steps": [
"Argue that the accepting party agreed to the forum selection clause as part of the EULA.",
"Cite case law and precedents where courts have upheld similar forum selection clauses.",
"Demonstrate that the chosen forum is reasonable and has a substantial relationship to the parties or the transaction."
]
},
{
"action": "Defend the prohibition on assignment",
"legal_basis": "Contractual agreement and necessity for maintaining control over contractual obligations",
"steps": [
"Argue that the prohibition on assignment is necessary to maintain control over the contractual relationship and obligations.",
"Provide examples of potential risks and burdens that could arise from allowing assignments.",
"Cite case law and precedents where courts have upheld similar prohibitions on assignment."
]
},
{
"action": "Mitigate potential claims of unfair practices",
"legal_basis": "Compliance with consumer protection laws and regulations",
"steps": [
"Review and ensure compliance with relevant consumer protection laws and regulations, including 15 U.S.C. § 45(a).",
"Consider offering alternative dispute resolution mechanisms, such as arbitration, to address concerns about fairness.",
"Provide clear and conspicuous disclosures about the forum selection clause and prohibition on assignment in the EULA."
]
}
],
"for_judges": [
{
"action": "Evaluate the enforceability of the forum selection clause",
"legal_basis": "28 U.S.C. § 1404(a) - Change of Venue and relevant case law",
"steps": [
"Assess whether the forum selection clause is reasonable and whether it imposes undue hardship on the accepting party.",
"Consider the convenience of parties and witnesses, and the interests of justice, as outlined in 28 U.S.C. § 1404(a).",
"Review relevant case law and precedents to determine the enforceability of the forum selection clause."
]
},
{
"action": "Determine if the forum selection clause constitutes an unfair practice",
"legal_basis": "15 U.S.C. § 45(a) - Unfair or Deceptive Acts or Practices",
"steps": [
"Evaluate evidence presented by the accepting party that the forum selection clause is an unfair practice.",
"Consider the impact of the clause on the accepting party's rights and whether it disadvantages them unfairly.",
"Review relevant case law and precedents to determine if the clause violates 15 U.S.C. § 45(a)."
]
},
{
"action": "Assess the prohibition on assignment",
"legal_basis": "U.C.C. § 2-210 - Delegation of Performance; Assignment of Rights",
"steps": [
"Evaluate whether the prohibition on assignment materially changes the duty of the accepting party or increases their burden.",
"Consider the flexibility allowed under U.C.C. § 2-210 and whether the prohibition is overly restrictive.",
"Review relevant case law and precedents to determine the enforceability of the prohibition on assignment."
]
},
{
"action": "Consider Washington state consumer protection laws",
"legal_basis": "RCW 19.86.090 - Consumer Protection Act - Private Right of Action",
"steps": [
"Evaluate claims brought under RCW 19.86.090 that the forum selection clause and prohibition on assignment constitute unfair or deceptive acts.",
"Consider the impact of Washington state consumer protection laws on the enforceability of the EULA provisions.",
"Review relevant case law and precedents to determine the applicability of Washington state laws to the dispute."
]
}
]
}
}
}
{
"section_header": "12. Export Restrictions",
"section_body": [
"This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the
export of software from the United States of America, and may be subject to export and import
regulations of other countries. You acknowledge and agree not to import, export, re-export,
transfer or use, directly or indirectly, the Software without compliance with such laws,
regulations, orders or other restrictions."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "12. Export Restrictions",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause imposes broad and potentially vague restrictions on the accepting party's ability to use the software, which may not be clearly defined or understood.",
"It places the burden of compliance with complex export and import regulations on the accepting party, which could be unreasonable for individuals or small entities without the resources to fully understand and comply with such regulations.",
"The clause may infringe on the accepting party's rights by imposing restrictions that are not clearly defined, making it difficult for the accepting party to understand their obligations.",
"It potentially places the entire legal responsibility for compliance on the accepting party, which may be unfair and unreasonable.",
"The clause does not provide any guidance or support from the offering party (LinkedIn) regarding how to comply with these regulations, leaving the accepting party at a disadvantage.",
"It could potentially lead to legal liabilities for the accepting party if they unknowingly violate complex export regulations.",
"The clause imposes restrictions on the accepting party's ability to use the software, which may limit their operational flexibility and business opportunities.",
"It could result in the accepting party facing penalties for actions that are not clearly within their control or understanding."
],
"USC_laws": [
{
"law": "50 U.S.C. § 4813",
"popular_name_for_this_specific_section_of_the_law": "Export Control Reform Act of 2018 (ECRA)",
"why_this_law": "50 U.S.C. § 4813 outlines the responsibilities and limitations of export control regulations, ensuring that individuals and entities are not unduly burdened by compliance requirements that are not clearly defined or reasonably enforceable. This section can be interpreted to protect the rights of the accepting party by ensuring that any export control requirements are clear, reasonable, and not overly burdensome.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section4813&num=0&edition=prelim"
},
{
"law": "50 U.S.C. § 1702",
"popular_name_for_this_specific_section_of_the_law": "International Emergency Economic Powers Act (IEEPA)",
"why_this_law": "50 U.S.C. § 1702 provides the President with the authority to regulate international commerce in response to unusual and extraordinary threats. However, it also includes provisions to ensure that such regulations are not overly broad or vague, thereby protecting the rights of individuals and entities from unreasonable compliance burdens.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section1702&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 allows a court to refuse to enforce a contract or clause that it finds to be unconscionable at the time it was made. The clause in question could be considered unconscionable because it imposes an unreasonable burden on the accepting party without providing adequate support or guidance from the offering party.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"CFR_regulations": [
{
"regulation": "15 C.F.R. § 734.3",
"popular_name_for_this_specific_part_of_the_regulation": "Scope of the Export Administration Regulations",
"US_government_agency": "Bureau of Industry and Security (BIS)",
"why_this_regulation": "15 C.F.R. § 734.3 outlines the scope of the Export Administration Regulations and clarifies the responsibilities of parties involved in the export of software. It ensures that both the offering and accepting parties share the responsibility for compliance, thereby protecting the accepting party from undue burden.",
"url": "https://www.ecfr.gov/current/title-15/subtitle-B/chapter-VII/subchapter-C/part-734"
},
{
"regulation": "22 C.F.R. § 120.1",
"popular_name_for_this_specific_part_of_the_regulation": "General authorities and eligibility",
"US_government_agency": "Directorate of Defense Trade Controls (DDTC)",
"why_this_regulation": "22 C.F.R. § 120.1 provides a clear framework for understanding the responsibilities and authorities under ITAR, ensuring that the accepting party is not unfairly burdened with compliance requirements that are not clearly communicated or understood.",
"url": "https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-120"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "RCW 19.86.020 prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. The broad and potentially vague restrictions imposed by the clause could be considered unfair or deceptive, as they may place an unreasonable burden on the accepting party without clear guidelines or exceptions.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Negotiate for clearer and more specific terms in the export restrictions clause.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Review the current clause for any vague or overly broad language.",
"Propose amendments to the clause that clearly define the accepting party's obligations.",
"Request that LinkedIn provide guidance or support for compliance with export regulations.",
"Cite U.C.C. § 2-302 to argue that the current clause is unconscionable and places an unreasonable burden on the accepting party."
]
},
{
"action": "Seek a declaratory judgment to clarify the obligations under the export restrictions clause.",
"legal_basis": "50 U.S.C. § 4813 (Export Control Reform Act of 2018)",
"steps": [
"File a motion for declaratory judgment in a competent court.",
"Present arguments that the current clause is overly broad and not clearly defined.",
"Use 50 U.S.C. § 4813 to argue that export control requirements should be clear and reasonable.",
"Request the court to provide a clear interpretation of the clause to ensure compliance."
]
},
{
"action": "Challenge the clause under state law for being unfair or deceptive.",
"legal_basis": "RCW 19.86.020 (Unfair or Deceptive Acts or Practices)",
"steps": [
"File a complaint with the Washington State Attorney General's Office.",
"Argue that the clause imposes unfair or deceptive restrictions on the accepting party.",
"Provide evidence that the clause places an unreasonable burden without clear guidelines.",
"Request an investigation and potential enforcement action under RCW 19.86.020."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Revise the export restrictions clause to provide clearer guidance and support.",
"legal_basis": "15 C.F.R. § 734.3 (Scope of the Export Administration Regulations)",
"steps": [
"Review the current clause for any vague or overly broad language.",
"Amend the clause to clearly define the responsibilities of both parties.",
"Include provisions for offering support and guidance to the accepting party for compliance.",
"Ensure that the revised clause aligns with the requirements of 15 C.F.R. § 734.3."
]
},
{
"action": "Implement a compliance support program for accepting parties.",
"legal_basis": "22 C.F.R. § 120.1 (General authorities and eligibility)",
"steps": [
"Develop a comprehensive compliance support program for accepting parties.",
"Provide training and resources to help accepting parties understand their obligations.",
"Establish a helpdesk or support line for compliance-related queries.",
"Ensure that the program aligns with the framework provided by 22 C.F.R. § 120.1."
]
},
{
"action": "Conduct a risk assessment to identify potential legal liabilities.",
"legal_basis": "50 U.S.C. § 1702 (International Emergency Economic Powers Act)",
"steps": [
"Perform a thorough risk assessment of the current export restrictions clause.",
"Identify any areas where the clause may impose unreasonable burdens on the accepting party.",
"Develop strategies to mitigate identified risks, such as clearer language or additional support.",
"Ensure that the revised clause and risk mitigation strategies comply with 50 U.S.C. § 1702."
]
}
],
"for_judges": [
{
"action": "Evaluate the fairness and clarity of the export restrictions clause.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Review the language of the export restrictions clause in the context of the entire agreement.",
"Assess whether the clause imposes an unreasonable burden on the accepting party.",
"Consider whether the clause provides clear guidance and support for compliance.",
"Determine if the clause is unconscionable under U.C.C. § 2-302 and whether it should be enforced or modified."
]
},
{
"action": "Interpret the clause in light of federal export control laws.",
"legal_basis": "50 U.S.C. § 4813 (Export Control Reform Act of 2018)",
"steps": [
"Examine the clause to ensure it aligns with the requirements of 50 U.S.C. § 4813.",
"Consider whether the clause provides clear and reasonable compliance requirements.",
"Evaluate the potential burden placed on the accepting party by the clause.",
"Issue a ruling that clarifies the obligations of the accepting party under the clause."
]
},
{
"action": "Ensure that the clause does not violate state laws against unfair or deceptive practices.",
"legal_basis": "RCW 19.86.020 (Unfair or Deceptive Acts or Practices)",
"steps": [
"Review the clause to determine if it imposes unfair or deceptive restrictions.",
"Consider the impact of the clause on the accepting party's ability to comply with regulations.",
"Evaluate whether the clause provides adequate guidance and support for compliance.",
"Issue a ruling that addresses any unfair or deceptive aspects of the clause under RCW 19.86.020."
]
}
]
}
}
}
{
"section_header": "8. U.S. Government Restricted Rights",
"section_body": [
"By accepting delivery, the government agrees that the Software and accompanying
documentation qualifies as \"commercial\" computer software within the meaning of the
applicable acquisition regulations. The terms and conditions of this EULA govern the
government's use and disclosure of the Software and supersede any conflicting terms and
conditions. If this EULA fails to meet the government's needs or is inconsistent in any way with
federal law, the government must return the Software, unused, to LinkedIn."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "8. U.S. Government Restricted Rights",
"offering_party": "LinkedIn",
"accepting_party": "U.S. Government",
"accepting_party_state": "N/A",
"key_issues": [
"The clause attempts to unilaterally define the software as 'commercial' without allowing for negotiation or consideration of the government's specific needs.",
"It imposes LinkedIn's EULA terms over any conflicting federal regulations, which may not be permissible under federal law.",
"The clause requires the government to return the software if the EULA is inconsistent with federal law, which could be seen as an attempt to circumvent federal procurement regulations."
],
"USC_laws": [
{
"law": "41 U.S.C. § 3301",
"popular_name_for_this_specific_section_of_the_law": "Full and Open Competition",
"why_this_law": "41 U.S.C. § 3301 mandates that federal procurement must be conducted under the principle of full and open competition. This ensures that the government can negotiate terms that meet its needs and comply with federal law. The clause in the EULA attempts to override this principle by imposing LinkedIn's terms without allowing for such negotiation or compliance checks.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3301&num=0&edition=prelim"
},
{
"law": "10 U.S.C. § 2377",
"popular_name_for_this_specific_section_of_the_law": "Preference for Acquisition of Commercial Items",
"why_this_law": "10 U.S.C. § 2377 requires that the Department of Defense and other federal agencies give preference to the acquisition of commercial items but also mandates that such acquisitions comply with federal procurement laws and regulations. The clause in the EULA attempts to impose terms that may conflict with these regulations, thereby infringing on the government's rights to procure items under legally compliant terms.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section2377&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 allows courts to refuse to enforce unconscionable contracts or clauses within contracts. This section provides a legal basis for challenging the clause as it may be deemed unconscionable due to its attempt to override federal law and impose unilateral terms on the accepting party.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
},
{
"law": "U.C.C. § 2-207",
"popular_name_for_this_specific_section_of_the_law": "Additional Terms in Acceptance or Confirmation",
"why_this_law": "U.C.C. § 2-207 addresses the 'battle of the forms' and provides that additional terms in a contract between merchants become part of the contract unless they materially alter it or the offeror objects. This section supports the accepting party's rights by allowing for the possibility that the terms imposed by LinkedIn could be contested and not automatically accepted.",
"url": "https://www.law.cornell.edu/ucc/2/2-207"
}
],
"CFR_regulations": [
{
"regulation": "48 C.F.R. § 12.212",
"popular_name_for_this_specific_part_of_the_regulation": "Acquisition of Commercial Items",
"US_government_agency": "Federal Acquisition Regulatory Council",
"why_this_regulation": "48 C.F.R. § 12.212 states that commercial computer software and commercial computer software documentation shall be acquired under the licenses customarily provided to the public to the extent such licenses are consistent with Federal law and otherwise satisfy the Government's needs. This regulation ensures that the government's rights are protected and that any software acquisition complies with federal procurement laws.",
"url": "https://www.ecfr.gov/current/title-48/part-12/subpart-12.2/section-12.212"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "RCW 19.86.020 prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. The clause in question could be considered an unfair practice as it imposes terms that may not be negotiable and could conflict with federal laws, thereby potentially deceiving the accepting party about their rights and obligations.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the enforceability of the EULA clause",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"File a motion to declare the clause unconscionable under U.C.C. § 2-302.",
"Present evidence that the clause attempts to override federal law and imposes unilateral terms.",
"Argue that the clause is unfair and not negotiable, thus meeting the criteria for unconscionability."
]
},
{
"action": "Assert the supremacy of federal procurement laws",
"legal_basis": "41 U.S.C. § 3301 (Full and Open Competition) and 10 U.S.C. § 2377 (Preference for Acquisition of Commercial Items)",
"steps": [
"Cite 41 U.S.C. § 3301 to argue that federal procurement must allow for negotiation and compliance with federal law.",
"Use 10 U.S.C. § 2377 to emphasize that while commercial items are preferred, they must still comply with federal regulations.",
"Request a review of the EULA terms to ensure they do not conflict with federal procurement laws."
]
},
{
"action": "Invoke federal regulations to protect government rights",
"legal_basis": "48 C.F.R. § 12.212 (Acquisition of Commercial Items)",
"steps": [
"Reference 48 C.F.R. § 12.212 to argue that the software license must be consistent with federal law.",
"Request a compliance check to ensure the EULA terms meet the government's needs and legal requirements.",
"Propose amendments to the EULA to align it with federal regulations."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Amend the EULA to comply with federal procurement laws",
"legal_basis": "41 U.S.C. § 3301 and 10 U.S.C. § 2377",
"steps": [
"Review the EULA to identify terms that conflict with federal procurement laws.",
"Amend the EULA to allow for negotiation and compliance with federal regulations.",
"Ensure that the amended EULA is consistent with the principles of full and open competition and preference for commercial items."
]
},
{
"action": "Provide a clear disclaimer regarding federal law compliance",
"legal_basis": "48 C.F.R. § 12.212",
"steps": [
"Include a disclaimer in the EULA stating that the terms are subject to compliance with federal law.",
"Ensure that the disclaimer clarifies that any conflicting terms will be overridden by federal regulations.",
"Consult with federal procurement experts to ensure the disclaimer is legally sound."
]
},
{
"action": "Engage in proactive negotiations with the government",
"legal_basis": "U.C.C. § 2-207 (Additional Terms in Acceptance or Confirmation)",
"steps": [
"Initiate discussions with the accepting party to address any concerns about the EULA terms.",
"Be open to modifying terms that materially alter the contract or conflict with federal law.",
"Document all negotiations and agreed-upon changes to ensure mutual understanding and compliance."
]
}
],
"for_judges": [
{
"action": "Evaluate the enforceability of the EULA clause",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Review the arguments and evidence presented by both parties regarding the clause's fairness.",
"Determine if the clause meets the criteria for unconscionability under U.C.C. § 2-302.",
"Issue a ruling on whether the clause should be enforced or deemed unconscionable."
]
},
{
"action": "Ensure compliance with federal procurement laws",
"legal_basis": "41 U.S.C. § 3301 and 10 U.S.C. § 2377",
"steps": [
"Assess whether the EULA terms comply with the principles of full and open competition and preference for commercial items.",
"Consider the government's need to negotiate terms that meet federal procurement regulations.",
"Issue a ruling that ensures the EULA terms do not override federal law."
]
},
{
"action": "Uphold federal regulations protecting government rights",
"legal_basis": "48 C.F.R. § 12.212",
"steps": [
"Review the EULA to ensure it aligns with 48 C.F.R. § 12.212 requirements.",
"Determine if the software license is consistent with federal law and meets the government's needs.",
"Issue a ruling that enforces compliance with federal regulations and protects the government's rights."
]
}
]
}
}
}
{
"section_header": "4. Restrictions",
"section_body": [
"You understand and agree that you shall only use the Software in a manner that complies with
any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be
in accordance with applicable restrictions concerning privacy and intellectual property rights.",
"You may not:
Create derivative works based on the Software;
Use the Software for any purpose other than as described herein;
Copy or reproduce the Software except as described in this EULA;
Sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or
any copies of the Software in any form to any third parties;
Alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do
any of the foregoing, except to the extent this prohibition is not permitted under an applicable
law; or
Remove or alter any proprietary notices or marks on the Software."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "4. Restrictions",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause imposes a broad and potentially vague obligation on the accepting party to comply with all applicable laws, which may be overly burdensome and difficult to ascertain.",
"The clause restricts the accepting party's ability to create derivative works, which may infringe on their rights under the doctrine of fair use.",
"The clause's prohibition on reverse engineering may infringe on the accepting party's rights to understand and improve the software for interoperability purposes.",
"The clause could be considered unfair or deceptive by imposing a broad and vague obligation on the accepting party to comply with all applicable laws.",
"The clause could be deemed unconscionable because it imposes an unreasonable and overly burdensome obligation on the accepting party to comply with all applicable laws without adequate support or clarification from the offering party."
],
"USC_laws": [
{
"law": "17 U.S.C. § 107",
"popular_name_for_this_specific_section_of_the_law": "Fair Use Doctrine",
"why_this_law": "17 U.S.C. § 107 provides the legal basis for the doctrine of fair use, which allows limited use of copyrighted material without requiring permission from the rights holders. This law supports the accepting party's right to use the software in ways that might otherwise be restricted by the clause, as long as the use qualifies as fair use.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section107&num=0&edition=prelim"
},
{
"law": "17 U.S.C. § 1201(f)",
"popular_name_for_this_specific_section_of_the_law": "Interoperability Exemption",
"why_this_law": "17 U.S.C. § 1201(f) provides an exemption to the prohibition on circumvention of technological measures for the purpose of enabling interoperability of an independently created computer program with other programs. This law supports the accepting party's right to reverse engineer the software to achieve interoperability, which the clause in the EULA seeks to prohibit.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section1201&num=0&edition=prelim"
},
{
"law": "15 U.S.C. § 45",
"popular_name_for_this_specific_section_of_the_law": "Unfair or Deceptive Acts or Practices",
"why_this_law": "15 U.S.C. § 45 prohibits unfair or deceptive acts or practices in commerce. This law supports the accepting party's right to be free from overly broad and vague contractual obligations that could be considered unfair or deceptive.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 allows courts to refuse to enforce or to limit the application of any clause in a contract that is found to be unconscionable at the time it was made. The clause in question could be deemed unconscionable because it imposes an unreasonable and overly burdensome obligation on the accepting party to comply with all applicable laws without adequate support or clarification from the offering party.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"CFR_regulations": [
{
"regulation": "5 C.F.R. § 2635.101(b)(14)",
"popular_name_for_this_specific_part_of_the_regulation": "Standards of Ethical Conduct for Employees of the Executive Branch",
"US_government_agency": "U.S. Office of Government Ethics (OGE)",
"why_this_regulation": "5 C.F.R. § 2635.101(b)(14) states that employees shall not engage in any actions that create the appearance of violating the law or ethical standards. This regulation supports the accepting party's right to clear and specific guidelines to avoid any appearance of non-compliance or unethical behavior.",
"url": "https://www.ecfr.gov/current/title-5/section-2635.101"
},
{
"regulation": "37 C.F.R. § 201.40",
"popular_name_for_this_specific_part_of_the_regulation": "Exemptions to Prohibition Against Circumvention",
"US_government_agency": "U.S. Copyright Office",
"why_this_regulation": "37 C.F.R. § 201.40 provides exemptions for certain activities, such as making backup copies of software and reverse engineering for compatibility purposes. These exemptions support the accepting party's rights to make necessary copies and understand the software for legitimate purposes.",
"url": "https://www.ecfr.gov/current/title-37/chapter-II/part-201/section-201.40"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.020",
"popular_name_for_this_specific_section_of_the_law": "Unfair Competition and Practices",
"why_this_law": "RCW 19.86.020 prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. The broad and vague nature of the clause could be considered an unfair practice as it imposes an unreasonable burden on the accepting party to comply with all applicable laws without clear guidance.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.020"
},
{
"law": "RCW 19.86.030",
"popular_name_for_this_specific_section_of_the_law": "Restraint of Trade",
"why_this_law": "RCW 19.86.030 declares contracts, combinations, and conspiracies in restraint of trade to be unlawful. The restrictive clauses in the EULA could be seen as an attempt to restrain trade by limiting the accepting party's ability to use, modify, and distribute the software.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.030"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the broad obligation to comply with all applicable laws as overly burdensome and vague.",
"legal_basis": "15 U.S.C. § 45 (Unfair or Deceptive Acts or Practices) and RCW 19.86.020 (Unfair Competition and Practices)",
"steps": [
"File a complaint with the Federal Trade Commission (FTC) citing 15 U.S.C. § 45, arguing that the clause is unfair and deceptive.",
"File a complaint with the Washington State Attorney General's Office under RCW 19.86.020, arguing that the clause constitutes an unfair practice.",
"Seek a declaratory judgment from a court to clarify the obligations under the clause."
]
},
{
"action": "Assert the right to create derivative works under the Fair Use Doctrine.",
"legal_basis": "17 U.S.C. § 107 (Fair Use Doctrine)",
"steps": [
"Prepare a legal opinion outlining how the intended use qualifies as fair use under 17 U.S.C. § 107.",
"If challenged, present the legal opinion in court to defend the creation of derivative works.",
"Negotiate with LinkedIn to include a fair use exception in the EULA."
]
},
{
"action": "Challenge the prohibition on reverse engineering for interoperability purposes.",
"legal_basis": "17 U.S.C. § 1201(f) (Interoperability Exemption) and 37 C.F.R. § 201.40 (Exemptions to Prohibition Against Circumvention)",
"steps": [
"File a motion for summary judgment to declare the reverse engineering prohibition unenforceable under 17 U.S.C. § 1201(f).",
"Submit evidence showing that the reverse engineering is for the purpose of achieving interoperability.",
"Request an exemption from the U.S. Copyright Office under 37 C.F.R. § 201.40."
]
},
{
"action": "Argue that the clause is unconscionable and should not be enforced.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"File a motion to have the clause declared unconscionable under U.C.C. § 2-302.",
"Present evidence showing the unreasonable and overly burdensome nature of the clause.",
"Seek a court order to either strike the clause or limit its application."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Clarify the obligations under the clause to avoid claims of unfair or deceptive practices.",
"legal_basis": "15 U.S.C. § 45 (Unfair or Deceptive Acts or Practices) and RCW 19.86.020 (Unfair Competition and Practices)",
"steps": [
"Amend the EULA to provide specific examples of applicable laws that the accepting party must comply with.",
"Include a section in the EULA that offers guidance and resources for understanding applicable laws.",
"Conduct a legal review to ensure that the clause is not overly broad or vague."
]
},
{
"action": "Include a fair use exception in the EULA to address concerns about derivative works.",
"legal_basis": "17 U.S.C. § 107 (Fair Use Doctrine)",
"steps": [
"Draft an amendment to the EULA that explicitly allows for fair use exceptions.",
"Consult with copyright experts to ensure the amendment aligns with 17 U.S.C. § 107.",
"Communicate the changes to existing and new users to ensure transparency."
]
},
{
"action": "Provide an interoperability exception to the reverse engineering prohibition.",
"legal_basis": "17 U.S.C. § 1201(f) (Interoperability Exemption) and 37 C.F.R. § 201.40 (Exemptions to Prohibition Against Circumvention)",
"steps": [
"Amend the EULA to include an exception for reverse engineering for interoperability purposes.",
"Ensure the amendment is consistent with 17 U.S.C. § 1201(f) and 37 C.F.R. § 201.40.",
"Review the amendment with technical experts to ensure it meets interoperability needs."
]
},
{
"action": "Review and revise the clause to avoid claims of unconscionability.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Conduct a legal review to identify any potentially unconscionable terms in the EULA.",
"Revise the clause to ensure it is reasonable and not overly burdensome.",
"Include a section that offers support and clarification to the accepting party regarding their obligations."
]
}
],
"for_judges": [
{
"action": "Evaluate the fairness and clarity of the clause in question.",
"legal_basis": "15 U.S.C. § 45 (Unfair or Deceptive Acts or Practices) and RCW 19.86.020 (Unfair Competition and Practices)",
"steps": [
"Review the specific language of the clause to determine if it is overly broad or vague.",
"Consider the impact of the clause on the accepting party and whether it constitutes an unfair practice.",
"Issue a ruling that either upholds, modifies, or strikes the clause based on its fairness and clarity."
]
},
{
"action": "Determine whether the creation of derivative works falls under fair use.",
"legal_basis": "17 U.S.C. § 107 (Fair Use Doctrine)",
"steps": [
"Examine the purpose and character of the use, including whether it is for commercial or educational purposes.",
"Consider the nature of the copyrighted work and the amount used.",
"Issue a ruling on whether the creation of derivative works qualifies as fair use under 17 U.S.C. § 107."
]
},
{
"action": "Assess the legality of the reverse engineering prohibition for interoperability purposes.",
"legal_basis": "17 U.S.C. § 1201(f) (Interoperability Exemption) and 37 C.F.R. § 201.40 (Exemptions to Prohibition Against Circumvention)",
"steps": [
"Review evidence showing that the reverse engineering is for the purpose of achieving interoperability.",
"Consider the exemptions provided under 17 U.S.C. § 1201(f) and 37 C.F.R. § 201.40.",
"Issue a ruling on whether the reverse engineering prohibition is enforceable."
]
},
{
"action": "Evaluate whether the clause is unconscionable and should be enforced.",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause)",
"steps": [
"Review the terms of the clause to determine if they are unreasonable or overly burdensome.",
"Consider the circumstances under which the EULA was agreed upon.",
"Issue a ruling on whether the clause is unconscionable and, if so, whether it should be modified or struck."
]
}
]
}
}
}
{
"section_header": "11. Limitation of Liability",
"section_body": [
"YOU EXPRESSLY UNDERSTAND AND AGREE THAT LINKEDIN SHALL NOT BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS,
GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LINKEDIN HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL LINKEDIN'S
AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF LICENSING FEES PAID BY
YOU TO LINKEDIN. THESE LIMITATIONS AND EXCLUSIONS WILL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR
EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU."
],
"legal_review": {
"document_title": "End User License Agreement",
"section_header": "11. Limitation of Liability",
"offering_party": "LinkedIn",
"accepting_party": "individual or entity",
"accepting_party_state": "Washington",
"key_issues": [
"The clause attempts to limit LinkedIn's liability for indirect, incidental, special, consequential, or exemplary damages, which may infringe on the accepting party's right to seek full compensation for losses incurred due to LinkedIn's actions or negligence.",
"The clause caps LinkedIn's aggregate liability to the amount of licensing fees paid, which may be significantly lower than the actual damages suffered by the accepting party.",
"The clause may be unenforceable in jurisdictions that do not allow limitations of damages and/or exclusions of liability for incidental or consequential damages, potentially misleading the accepting party about their rights.",
"The clause may be seen as unfair or unconscionable, especially if the accepting party has no meaningful opportunity to negotiate the terms, thus potentially violating principles of fairness and equity in contract law.",
"The clause may prevent the accepting party from recovering damages for loss of profits, goodwill, use, data, or other intangible losses, which could be significant in the context of business operations."
],
"USC_laws": [
{
"law": "15 U.S.C. § 45",
"popular_name_for_this_specific_section_of_the_law": "Federal Trade Commission Act",
"why_this_law": "15 U.S.C. § 45 prohibits unfair or deceptive acts or practices in commerce. A clause that excessively limits liability could be considered an unfair practice if it significantly disadvantages the accepting party without a reasonable justification.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
},
{
"law": "15 U.S.C. § 1",
"popular_name_for_this_specific_section_of_the_law": "Sherman Antitrust Act",
"why_this_law": "15 U.S.C. § 1 prohibits contracts, combinations, or conspiracies in restraint of trade or commerce. A clause that excessively limits liability could be seen as a restraint on the accepting party's ability to seek redress and thus could be considered anti-competitive.",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1&num=0&edition=prelim"
}
],
"UCC_laws": [
{
"law": "U.C.C. § 2-719(3)",
"popular_name_for_this_specific_section_of_the_law": "Limitation of Consequential Damages",
"why_this_law": "U.C.C. § 2-719(3) states that consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. This section provides a legal basis for challenging the clause if it is deemed unconscionable, particularly if the damages are significant and the limitation is not reasonable.",
"url": "https://www.law.cornell.edu/ucc/2/2-719"
},
{
"law": "U.C.C. § 2-302",
"popular_name_for_this_specific_section_of_the_law": "Unconscionable Contract or Clause",
"why_this_law": "U.C.C. § 2-302 allows courts to refuse to enforce a contract or clause that it finds to be unconscionable at the time it was made. This section provides a legal basis for the accepting party to argue that the limitation of liability clause is unconscionable and should not be enforced, especially if it results in a grossly unfair outcome.",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"CFR_regulations": [
{
"regulation": "16 C.F.R. § 1.1",
"popular_name_for_this_specific_part_of_the_regulation": "General Policy of the FTC",
"US_government_agency": "Federal Trade Commission (FTC)",
"why_this_regulation": "16 C.F.R. § 1.1 outlines the general policy of the Federal Trade Commission (FTC) to prevent unfair or deceptive acts or practices in commerce. Limiting liability in a manner that prevents consumers from obtaining full compensation for damages could be considered an unfair practice, thus infringing on the accepting party's rights.",
"url": "https://www.ecfr.gov/current/title-16"
}
],
"Washington_state_laws": [
{
"law": "RCW 19.86.090",
"popular_name_for_this_specific_section_of_the_law": "Washington Consumer Protection Act",
"why_this_law": "RCW 19.86.090 allows individuals to seek actual damages, including treble damages, for unfair or deceptive acts in trade or commerce. This statute supports the accepting party's right to seek full compensation for damages, which the LinkedIn clause attempts to limit.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=19.86.090"
},
{
"law": "RCW 62A.2-719(3)",
"popular_name_for_this_specific_section_of_the_law": "Limitation of Consequential Damages",
"why_this_law": "RCW 62A.2-719(3) states that consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. This statute provides a basis for challenging the exclusion of consequential damages if it is deemed unconscionable.",
"url": "https://app.leg.wa.gov/RCW/default.aspx?cite=62A.2-719"
}
],
"recommendations": {
"for_accepting_party_lawyers": [
{
"action": "Challenge the enforceability of the limitation of liability clause",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause) and RCW 62A.2-719(3) (Limitation of Consequential Damages)",
"steps": [
"Gather evidence demonstrating the significant disparity in bargaining power between LinkedIn and the accepting party.",
"Collect documentation of the actual damages suffered by the accepting party, including loss of profits, goodwill, use, data, or other intangible losses.",
"File a motion to have the limitation of liability clause declared unconscionable and unenforceable under U.C.C. § 2-302 and RCW 62A.2-719(3).",
"Present arguments and evidence in court to show that the clause results in a grossly unfair outcome and is not reasonable."
]
},
{
"action": "Argue that the clause constitutes an unfair or deceptive practice",
"legal_basis": "15 U.S.C. § 45 (Federal Trade Commission Act) and RCW 19.86.090 (Washington Consumer Protection Act)",
"steps": [
"Document how the limitation of liability clause significantly disadvantages the accepting party without reasonable justification.",
"File a complaint with the Federal Trade Commission (FTC) alleging that the clause constitutes an unfair or deceptive practice under 15 U.S.C. § 45.",
"Initiate a lawsuit under the Washington Consumer Protection Act (RCW 19.86.090) to seek actual damages, including treble damages, for the unfair or deceptive act.",
"Present evidence in court to demonstrate how the clause misleads the accepting party about their rights and prevents them from obtaining full compensation for damages."
]
}
],
"for_offering_party_lawyers": [
{
"action": "Reassess and potentially revise the limitation of liability clause",
"legal_basis": "Compliance with U.C.C. § 2-719(3) and 16 C.F.R. § 1.1 (General Policy of the FTC)",
"steps": [
"Conduct a thorough review of the current limitation of liability clause to ensure it is not unconscionable and complies with U.C.C. § 2-719(3).",
"Consult with legal experts to determine a reasonable cap on liability that balances risk management with fairness to the accepting party.",
"Revise the clause to include clear and reasonable limitations that are less likely to be challenged as unfair or deceptive.",
"Update the End User License Agreement to reflect the revised clause and ensure it is communicated transparently to all users."
]
},
{
"action": "Implement a risk containment strategy to mitigate potential legal challenges",
"legal_basis": "15 U.S.C. § 1 (Sherman Antitrust Act) and RCW 62A.2-719(3)",
"steps": [
"Develop a comprehensive risk assessment to identify potential areas where the limitation of liability clause could be challenged.",
"Create internal guidelines for handling disputes related to the limitation of liability clause, including mediation and arbitration options.",
"Train customer service and legal teams on the revised clause and the importance of fair and transparent communication with users.",
"Monitor legal developments and regulatory changes to ensure ongoing compliance with relevant laws and regulations."
]
}
],
"for_judges": [
{
"action": "Evaluate the enforceability of the limitation of liability clause",
"legal_basis": "U.C.C. § 2-302 (Unconscionable Contract or Clause) and RCW 62A.2-719(3) (Limitation of Consequential Damages)",
"steps": [
"Review the evidence presented by both parties regarding the fairness and reasonableness of the limitation of liability clause.",
"Consider the disparity in bargaining power between LinkedIn and the accepting party, as well as the actual damages suffered.",
"Determine whether the clause is unconscionable and results in a grossly unfair outcome for the accepting party.",
"Issue a ruling on the enforceability of the clause based on the findings and applicable legal standards."
]
},
{
"action": "Assess whether the clause constitutes an unfair or deceptive practice",
"legal_basis": "15 U.S.C. § 45 (Federal Trade Commission Act) and RCW 19.86.090 (Washington Consumer Protection Act)",
"steps": [
"Examine the arguments and evidence presented by the accepting party regarding the unfair or deceptive nature of the clause.",
"Evaluate whether the clause significantly disadvantages the accepting party without reasonable justification.",
"Consider the potential impact of the clause on the accepting party's ability to seek full compensation for damages.",
"Issue a ruling on whether the clause constitutes an unfair or deceptive practice under the relevant laws and regulations."
]
}
]
}
}
}
marcfawzi
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