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Transformative technologies do not just change their own industries—they cause a ripple effect throughout adjacent, more mature sectors. Just as the sudden, mass embrace of augmented reality in Pokémon GO opens up a number of liability concerns, so, too, will the advent of autonomous vehicles (the embrace of which is markedly more measured, but just as inevitable) necessitate changes in the insurance industry and the products it provides. In their post, “Robot Take the Wheel: Insurance Implications of Autonomous Vehicles,” colleagues Peter Gillon and Bryan Coffey examine some of the likely paths these changes may take.

 

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TN-PokemonWe predicted last year that 2016 would be the year of Pokémon. This prophecy came true last week within just two days of the Pokémon Go launch. The location-based augmented reality mobile game/app quickly surpassed Tinder in daily users and neared Twitter’s totals (and as of yesterday, surpassed them), with its users spending twice as much time engaged with Pokémon Go relative to apps like Snapchat. This explosion has helped shares of Nintendo, partial owner of both the Pokémon Company and Niantic (which developed the game), grow over 50% in three trading days since the app’s launch. In the aftermath of the Pokémon takeover, it’s a good time to revisit some of the potential legal implications.

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Earlier this year, the Federal Trade Commission (FTC) went after Warner Bros. Home Entertainment Inc. for not clearly representing that several digital influencers were paid as part of a marketing campaign for the video game Middle Earth: Shadow of Mordor. (See our prior posts on FTC enforcement of its disclosure requirements.) According to the complaint, these influencers were paid amounts ranging from hundreds of dWarner Brosollars to tens of thousands of dollars and received advance-release copies of the game with instructions on how to promote the game. The sponsored videos were viewed more than 5.5 million times. One very popular influencer, Felix Kjellberg, known as “PewDiePie” on YouTube, created a video that has been viewed over 3.7 million times by itself.

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NewsofNoteMain

Snapchat announces a seismic shift, Microsoft looks to DNA for your long-term storage needs, and authorities try to get out ahead of some of the predictable consequences of Pokémon GO’s arrival. (Please look where you’re walking as you try to catch them all.)

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As a general rule, a website is not held liable for the content its users post on its platform. The Communications Decency Act (CDA) immunizes websites from lawsuits by not treating the website as the publisher or speaker of content posted by its users. It also allows websites to edit and remove content that could be obscene, lewd and objectionable without the website incurring liability for failure to remove other similar content. Courts have even gone as far as not holding websites liable for defamatory, offensive or infringing posts by its users even when such websites invite visitors to post potentially defamatory statements, so long as the website did not materially contribute to the actual offensive content of the post. While courts have applied this protection broadly, a recent Ninth Circuit decision declined to do so.

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NewsofNoteMainTo the surprise of no one, Instagram is pretty popular; Samsung puts a billion dollars into the Internet of Things; the FCC’s trying to decide if radio noise is a problem; and there’s an approach to virtual reality that won’t make you want to throw up.

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Our recent posts on successful legal challenges to the arbitration clauses in browsewrap and clickwrap agreements have a theme in common—even the most thorough and well-worded agreement can be rendered unenforceable by website design. With this in mind, we have put together a list of otherwise innocuous web design components that can be the bane of both browsewrap and clickwrap alike. Note, failure to pay attention to any one of these will not necessarily render your agreement weightless—many of these are culprits only when grouped together—but they are also each eminently addressable, so why not avoid potential pitfalls in the first place?

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clickwrapWe previously covered the developing legal issues with browsewrap agreements and the importance of reviewing and updating any such agreement to ensure users are bound to the terms. In a browsewrap agreement, the user’s assent to the agreement’s terms is inferred from the user’s use of the website. Often, the terms of a browsewrap agreement are accessible from a hyperlink placed on one or more webpages of the company’s website. As we mentioned in our initial post, browsewrap agreements have a close, usually more dependable relative—the “clickwrap” agreement. A clickwrap agreement requires the user to click a button to affirm assent to the agreement’s terms. As a result of this direct, affirmative action, many lawyers view clickwrap as a safer alternative than its browsewrap cousin.

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Anyone who has purchased a product online or downloaded software for a computer, tablet or mobile device has likely encountered “browsewrap” and “clickwrap” agreements. Such agreements are the bread and butter of companies that sell or license products or provide services via websites or web applications. Clickwrap agreements require a user to affirmatively click a button to affirm his or her assent to the agreement’s terms, whereas with a browsewrap agreement, the user’s assent to the agreement’s terms is inferred from the user’s use of the website. (Often, the terms of a browsewrap agreement are accessible from a hyperlink placed on one or more webpages of the company’s website.)

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GawkerFamed wrestler Hulk Hogan’s $140 million trial verdict against Gawker Media for publishing a tape of him having relations with his best friend’s wife and using racially offensive language, sends a clear message that despite the proliferation of Internet journalism, social media, paparazzi, and the 24 hour news cycle, celebrities are still entitled to privacy in their most intimate moments—at least for now.

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