Page 180 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 6 UGC Platforms’ Entitlement to UGCs
An Intermediary-oriented Approach

wrap ToU/ToS, a scroll-wrap ToU/ToS also requires the user to click an ‘I agree’ or ‘I
74
accept’ button. However, only by scrolling down the page and reading all the terms can the
user see and click the ‘I agree’ or ‘I accept’ button. Given that both click-wrap and scroll-
wrap contracts require users to click the ‘I agree’ button, they meet the notice and consent
elements. The affirmative act of clicking is said to catch users’ attention and explicitly
manifest users’ consent. Likewise, click-wrap and scroll-wrap contracts overcome the
dilemma that shrink-wrap contracts confront by providing users with the opportunity to read
the terms before being bound.
Sign-in-wrap agreements appear when a user signs up for the UGC platform. The sign-
up page usually states something to the effect of the following: ‘By signing up for an account
75
with [website provider], you are accepting the [website]’s terms of service’. Unlike shrink-
wrap, click-wrap and scroll-wrap ToUs/ToSs, which are usually provided in full text, sign-in-
wrap ToUs/ToSs are provided via hyperlinks. Fierce contests have sprung up over whether
76
the hyperlink is enough to put users on notice of the ToU/ToS or whether it is easily ignored.
In TopstepTrader v. Oneup Trader, the sign-in-wrap contract was upheld because the hyperlink
to the ToU ‘appears next to the only button that will allow the user to continue use of the
website’. In Cullinane v. Uber, the hyperlinked ToS was also considered prominent enough to
77
give sufficient notice because the phrase ‘[b]y creating an Uber account, you agree to the Terms
78
of Service & Privacy Policy’ would appear at the final stage of account registration.
Unlike the other forms of adhesion contracts discussed above, a browse-wrap agreement
does not require the users to click on an ‘I accept’ or ‘I agree’ button to indicate their
79
acceptance of the ToU/ToS. With a browse-wrap ToU/ToS, the mere act of accessing
80

or browsing the UGC platform is deemed to be assent. The key to the enforceability of
a browse-wrap ToU/ToS concerns both (i) the notice element, namely, whether the UGC
platform provides users with ‘notice and an opportunity to review the [ToU/ToS] prior to
81
acceptance’, and (ii) the assent element, namely whether the user has manifested assent
74 e.g., Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1175-77 (9th Cir. 2014); Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 366-
67 (E.D.N.Y 2015). 2016 U.S. Dist. LEXIS 150863.
75 TopstepTrader, LLC v. OneUp Trader, LLC, No. 1:2017cv04412 - Document 17, at *8 (N.D. Ill. 2017).
76 Fteja v. Facebook, Inc.,2012 WL 183896, at *6 (S.D.N.Y. Jan. 24, 2012); Vernon v. Qwest Communications Intern., Inc. 925 F.
Supp. 2d 1185, 1192 (D. Colo. Feb. 27, 2013).
77 TopstepTrader, LLC v. OneUp Trader, LLC, No. 1:2017cv04412 - Document 17, at *8 (N.D. Ill. 2017). (citing Berkson v.
Gogo LLC, 97 F. Supp. 3d 359, 401 (E.D.N.Y. 2015)).
78 See Cullinane v. Uber Techs., Inc., No. 14-14750-DPW, 2016 U.S. Dist. LEXIS 89540, at *7 (D Mass July 29, 2016)
(examining a visually identical sign-up flow and finding the plaintiff and Uber entered into a valid agreement to arbitrate their
disputes).
79 Be In, Inc. v. Google, Inc., No. 12-CV-03373, 2013 U.S. Dist. LEXIS 147047, at *23 (N.D. Cal. Oct. 9, 2013).
80 Southwest Airlines Co. v. BoardFirst, LLC, No. 3:06-CV-0891, 2007 U.S. Dist. LEXIS 96230, at *14 (N.D. Tex. Sept. 12,
2007). 981 F. Supp. 2d 496, *; 2013 U.S. Dist. LEXIS 160719; Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 366
(E.D.N.Y. 2009); Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 837-38 (S.D.N.Y. 2012); Long v. Provide Commerce, Inc., 200
Cal. Rptr. 3d 117, 122-23 (Ct. App. 2016); Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014).
81 Swift v. Zynga Game Networks, Inc., 805 F. Supp.2d 904, 911 (2011).

• 166 •