All Criticism of This Website Is Hereby Forbidden

by Greg Beck

Inventor-link is a company that promises to help inventors get their inventions to the marketplace. A link at the bottom of the company's home page leads to the site's "Privacy and User Agreement," which includes the the following terms:

By using this site you agree and understand that the HTML code, look, feel, content, company name, logo, text, and any likeness or derivative of such content is the sole property of Inventor-Link LLC and may not be used in any manner without the expressed written permission of Inventor-Link LLC. Furthermore, we strictly prohibit any links and or other unauthorized references to our web site without our permission.

With these terms, Inventor-link purports to prohibit visitors to the site from using the company's name, linking to the site, or even "refer[ring]" to it without permission. Although the enforceability of these terms is extremely dubious, the company is nevertheless invoking them in an attempt to stop criticism of the company that appears on InventorEd.org, a website that provides information about invention promotion businesses and scams.

Inventor-link is represented by Dozier Internet Law -- the same law firm that threatened to sue for copyright infringement if one of its demand letters were posted on the Internet. Once again, Dozier sent a strongly worded demand letter identifying a bunch of statements that it alleged to be defamatory, most of which appear to be statements of opinion. The letter goes on to invoke the website's user agreement:

You have not received permission to use text from our client’s website, and yet you have republished the following text:

“Official Site of Inventor-Link LLC - Your Link to Success for Your... We know how to get your idea from a rough sketch to a finished product in the marketplace. If your idea has what it takes, we can help you get the results you want. ...www.inventor-link.com”

You have associated your disparaging remarks with bona fide text from our client’s website with the purpose of harming our client’s business and diverting actual and potential customers. By using legitimate text that rightfully belongs to our client you are in violation of its website User Agreement.

Presumably, the author realizes that copying such a small amount of text for purposes of criticism is a pretty obvious case of fair use and could not support a claim for copyright infringement. But, by framing the issue as one of contract law, Direct-link's lawyer is able to assert that all use of its website, fair or otherwise, is prohibited.

Dozier apparently believes in the enforceability of this kind of agreement, because the firm's own website includes similar terms. The firm's "User Agreement" prohibits linking to its website, using the firm's name "in any manner" without permission (the license specifically provides that even clients cannot say they are represented by the firm without asking), or making "any copies of any part of this website in any way since we do not want anyone copying us." These terms would appear to prevent even criticizing the terms themselves, as this post does, by linking to and quoting from them. And, very strangely, the terms prohibit even looking at the website's HTML code:

We also own all of the code, including the HTML code, and all content. As you may know, you can view the HTML code with a standard browser. We do not permit you to view such code since we consider it to be our intellectual property protected by the copyright laws. You are therefore not authorized to do so.

Inventor-link's and Dozier's "User Agreements" are known as "browse-wrap" agreements, a derivation of the "shrinkwrap" licensing terms that appear inside packaged software. Browse-wrap agreements are the legalese contained in a website's terms of use, usually buried behind a link on a company's home page. The theory behind these agreements is that, just by reading a website, a consumer becomes bound by the company's contractual terms. These contracts often include forum-selection or arbitration clauses that visitors to the site have never read.

Depending on the circumstances of the case, browse-wrap agreements may or may not be enforceable. Where a company has included a provision prohibiting fair use for purposes of criticism, however, it is hard to see how any court would enforce the agreement. Readers of a site have little opportunity to review and agree to such terms, and a reasonable consumer who had reviewed the terms would be unlikely to agree to them.

Nevertheless, terms of use like these are commonly used by companies. AT&T was recently subjected to a round of harsh commentary on the Internet when it amended its terms of service to provide that it could terminate customers' accounts for conduct that "tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries." After a widespread backlash in the blogosphere, the company claimed that it would not use the clause to against critics, and eventually removed the offending terms altogether. And in 2002, the New York Attorney General filed suit against McAfee, the maker of anti-virus software, for including terms in its software license agreements that prohibited "product reviews" or "benchmark tests." The lawsuit claimed that the terms constituted a deceptive act or practice under New York law, and a court eventually enjoined further use of the provisions.

No matter how unlikely these kinds of terms are to be enforced, however, they are often successful in accomplishing their intended result. Consumers who receive threats of litigation over purportedly binding contractual terms are often more likely to shut up than to bear the expense of retaining an attorney and defending their rights.

Comments

[jf]

Not only did I fill out the comment form, but I pasted the source code of the user agreement into one of the boxes. Along with some Oh Noes!!!!

[Erik]

Here's their contact page: http://www.cybertriallawyer.com/legal-matter

Fill it out with your contact information and list them as the opposing party and the legal issue as "I looked at your HTML."

[Idiots]

And these idiots specialize in Internet Law!

[Dave]

I don't see anywhere where you got permission to link to their site! I hope they sue you!

[Matt]

Interesting...

So how does anyone with legal knowledge know how simply *looking* at their source code infringe their copyright?

I don't think anyone would contest that HTML would fall under copyright laws, but merely viewing it is a new one on me!

Incidentally, I used wget -O to get the HTML directly. In case you are wondering: its an old-school HTML TABLE layout nightmare, although they do at least use ALTs for their images!

[thanks]

i suggest we inform these poor people of their own source code via their contact form....

[dave]

OMG I'm in ur SITE and I'm reading ur SOURCE!!!

[quique]

seems the site is down, either they realized how stupid they are or someone showed them..
pwned!!!

[Max Powers at http://ConsumerFight.com]

Another case of lawyers making things up as they go. These scam company's must be making truck loads of money to pay for these lawyers. Pretty soon they are going to figure out a way to prevent us from breathing the same air as their clients.

[doih]

Great. Newbie lawyers who got on the Internet yesterday. Just what the world needs. I hope nobody ever views their source code or their web site for that matter.

"You go to hell. You go to hell and die."

[duh]

Putting aside for a moment various comments about how some of the source isn't owned by the website's owners, AND the main point of the post about "browse-wrap" enforceability, but isn't a "license" restriction prohibiting the viewing of HTML source code something a copyright owner could in fact condition a license on, at least under the Copyright Act. (practical reality aside.) If the code was a copyrightable work of that author, a license to display in web browser-rendered form but not in "uncompiled" text seems (to me) like a legal (if not intelligent) license restriction.

[inno]

If they don't want their source code viewed, they should take it down hahahah

[Ralph]

I feel like giving them a phone call just to tell them, that i looked at their source code and even played around with it with Web Developer Toolbar and Firebug.

Oh my God, i feel so terribly ashamed for doing that ;-)

[Anon, heh, yeah right!]

Odd, my browser must 'view the code' in order the render the page, a virus scanner must 'view the code' to protect my system, are all virus scanners and browsers in violation of copyright? I guess we'll find out what the jury says...

[jsw]

The irony here is that almost all forms that law firms use are derived from other forms that other law firms use, which in turn... and so on, for decades, if not a couple centuries.

In fact, much of the practice of law benefits from the absence of a strong copyright regime in legal documents, and certainly clients benefit, because the cost to recreate every document from scratch would be substantial, and the re-use of existing forms and other agreements allows good solutions to propagate relatively freely. This raises the standard of practice for the profession as a whole, and (believe it or not) substantially reduces the cost of legal services.