Created
June 8, 2024 20:36
-
-
Save innerop/37db98d3b34288b197cf6ab376b6800c to your computer and use it in GitHub Desktop.
linkedin-eula-analyzed-with-consideraton-for-impact-on-legal-rights.json
This file contains bidirectional Unicode text that may be interpreted or compiled differently than what appears below. To review, open the file in an editor that reveals hidden Unicode characters.
Learn more about bidirectional Unicode characters
| { | |
| "section_header": "5. Personal Information and Privacy", | |
| "analysis": [ | |
| { | |
| "clause": "Our handling of personal information we collect through the LinkedIn Services or the Software is governed by the LinkedIn Privacy Policy.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the LinkedIn Privacy Policy comply with federal regulations on data privacy and protection?", | |
| "law": "Privacy Act of 1974, 5 U.S.C. § 552a", | |
| "conflict": "The clause asserts that LinkedIn's handling of personal information is governed solely by its own Privacy Policy, which may not fully align with federal data protection laws.", | |
| "relevance": "The Privacy Act of 1974 requires federal agencies to establish safeguards for personal information to ensure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity. However, the LinkedIn Privacy Policy may not provide the same level of protection and safeguards as required by the Privacy Act of 1974, leading to potential conflicts in the handling and protection of personal information.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter5/subchapter2&edition=prelim" | |
| }, | |
| { | |
| "question": "Does LinkedIn's Privacy Policy meet the requirements of the Children's Online Privacy Protection Act (COPPA)?", | |
| "law": "Children's Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501â6506", | |
| "conflict": "The clause does not specify compliance with COPPA, which imposes certain requirements on operators of websites or online services directed to children under 13 years of age.", | |
| "relevance": "The Children's Online Privacy Protection Act (COPPA) requires operators of websites or online services directed to children under 13 to obtain verifiable parental consent before collecting personal information. This regulation is designed to protect the privacy and safety of children online. However, the LinkedIn Privacy Policy may not explicitly address the requirements of COPPA, potentially leading to non-compliance with federal regulations regarding the collection of personal information from children under 13.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter91&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the LinkedIn Privacy Policy comply with state-specific privacy laws?", | |
| "law": "California Consumer Privacy Act (CCPA), Cal. Civ. Code § 1798.100 et seq.", | |
| "conflict": "The LinkedIn Privacy Policy may not fully comply with certain state-specific privacy laws, which could impose stricter requirements on the handling of personal information.", | |
| "relevance": "The California Consumer Privacy Act (CCPA) requires businesses to provide specific disclosures and rights to consumers regarding their personal information, including the right to know, delete, and opt-out of the sale of personal information. However, the LinkedIn Privacy Policy may not fully comply with the specific requirements and consumer rights outlined in the CCPA, such as detailed disclosures and opt-out mechanisms.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&part=4.&lawCode=CIV&title=1.81.5" | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the LinkedIn Privacy Policy align with the stringent data protection requirements of the state?", | |
| "law": "New York SHIELD Act, N.Y. Gen. Bus. Law § 899-bb", | |
| "conflict": "The LinkedIn Privacy Policy may not meet the comprehensive data protection standards set by certain state laws.", | |
| "relevance": "The New York SHIELD Act mandates businesses to implement reasonable safeguards to protect the security, confidentiality, and integrity of private information. However, the LinkedIn Privacy Policy may not explicitly address the specific security measures and safeguards required by the SHIELD Act.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GBS/899-BB" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Right to Privacy", | |
| "reasoning": "The clause asserts that LinkedIn's handling of personal information is governed solely by its own Privacy Policy, which may not fully align with federal data protection laws such as the Privacy Act of 1974. This could result in inadequate safeguards for personal information, potentially violating individuals' right to privacy." | |
| }, | |
| { | |
| "right": "Protection of Children's Privacy", | |
| "reasoning": "The clause does not specify compliance with the Children's Online Privacy Protection Act (COPPA), which requires verifiable parental consent before collecting personal information from children under 13. This omission could lead to non-compliance with COPPA, thereby violating the privacy rights of children." | |
| }, | |
| { | |
| "right": "Consumer Privacy Rights", | |
| "reasoning": "The LinkedIn Privacy Policy may not fully comply with state-specific privacy laws such as the California Consumer Privacy Act (CCPA), which grants consumers specific rights regarding their personal information, including the right to know, delete, and opt-out of the sale of personal information. This could result in the violation of consumer privacy rights." | |
| }, | |
| { | |
| "right": "Data Protection and Security", | |
| "reasoning": "The LinkedIn Privacy Policy may not meet the comprehensive data protection standards set by state laws like the New York SHIELD Act, which mandates reasonable safeguards to protect the security, confidentiality, and integrity of private information. This could lead to inadequate data protection and security measures, violating individuals' rights to data protection." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "9. Open Source", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the clause comply with federal laws governing software licensing and copyright?", | |
| "law": "17 U.S.C. § 101 et seq. (Copyright Act of 1976)", | |
| "conflict": "The clause may conflict with federal laws if it fails to properly disclose the open source licenses or if it misrepresents the rights of the copyright holders.", | |
| "relevance": "The Copyright Act of 1976 requires proper disclosure and representation of copyright and licensing terms. If the clause does not accurately disclose the open source licenses or misrepresents the rights of the copyright holders, it may be in violation of the Copyright Act.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the clause comply with federal laws governing software distribution and licensing?", | |
| "law": "15 U.S.C. § 45 (Federal Trade Commission Act)", | |
| "conflict": "The clause may conflict with federal laws if it fails to provide clear and accessible information about the open source licenses.", | |
| "relevance": "The Federal Trade Commission Act prohibits unfair or deceptive acts or practices in commerce. If a clause does not provide clear and accessible information about open source licenses, it may be considered deceptive and in violation of the FTC Act.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter2&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Right to Proper Disclosure of Licensing Terms", | |
| "reasoning": "The clause may fail to properly disclose the open source licenses, which is required under the Copyright Act of 1976. This lack of disclosure can mislead users about their rights and obligations under the open source licenses." | |
| }, | |
| { | |
| "right": "Right to Accurate Representation of Copyright Holders' Rights", | |
| "reasoning": "If the clause misrepresents the rights of the copyright holders of the open source software, it could violate the Copyright Act of 1976. Users have the right to accurate information regarding the ownership and licensing of the software they are using." | |
| }, | |
| { | |
| "right": "Right to Clear and Accessible Information", | |
| "reasoning": "Under the Federal Trade Commission Act, users have the right to clear and accessible information about the open source licenses. If the clause fails to provide this information, it could be considered deceptive and in violation of the FTC Act." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "12. Export Restrictions", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [], | |
| "potentially_conflicting_state_laws": [] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| "Right to Free Trade: The clause imposes restrictions on the import, export, re-export, transfer, or use of the software, which could potentially limit the user's ability to freely trade or distribute the software across borders.", | |
| "Right to Use Purchased Software: Users may feel that their right to use the software they have legally purchased is being restricted by the need to comply with various export and import regulations.", | |
| "Right to Privacy: Compliance with export and import regulations may require users to disclose personal or business information, potentially infringing on their right to privacy." | |
| ] | |
| } | |
| { | |
| "section_header": "2. License", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the clause restrict the user's rights in a manner that conflicts with federal law?", | |
| "law": "17 U.S.C. § 109 - Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord", | |
| "conflict": "The clause restricts the user's ability to transfer the software, which may conflict with the first-sale doctrine under copyright law.", | |
| "relevance": "17 U.S.C. § 109 provides that the owner of a particular copy of a work lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy. This conflicts with the clause's restriction on transferring the software, as the first-sale doctrine allows the owner of a copy to transfer it without needing permission from the copyright holder.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section109&num=0&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the state law allow for more flexible use of software licenses than the EULA permits?", | |
| "law": "Cal. Civ. Code § 980(a)(2)", | |
| "conflict": "The state law allows for the transfer of software licenses under certain conditions, which conflicts with the non-transferable nature of the EULA.", | |
| "relevance": "California Civil Code Section 980(a)(2) allows the transfer of software licenses under certain conditions. However, this is in negative alignment with many End User License Agreements (EULAs), which often prohibit the transfer of software licenses.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=980.&lawCode=CIV" | |
| }, | |
| { | |
| "state": "Texas", | |
| "question": "Does the state law provide more lenient terms for software backup copies than the EULA?", | |
| "law": "Tex. Bus. & Com. Code § 35.51", | |
| "conflict": "The state law allows for multiple backup copies, which conflicts with the EULA's restriction to one backup copy.", | |
| "relevance": "According to Tex. Bus. & Com. Code § 35.51, multiple backup copies of software are permitted. However, this is in conflict with the End User License Agreement (EULA), which restricts backup copies to just one.", | |
| "url": "https://statutes.capitol.texas.gov/Docs/BC/htm/BC.35.htm" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "First-Sale Doctrine", | |
| "description": "The clause restricts the user's ability to transfer the software, which may conflict with the first-sale doctrine under 17 U.S.C. § 109. This doctrine allows the owner of a particular copy of a work to sell or otherwise dispose of that copy without needing permission from the copyright holder.", | |
| "relevant_law": "17 U.S.C. § 109", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section109&num=0&edition=prelim" | |
| }, | |
| { | |
| "right": "Transfer of Software Licenses", | |
| "description": "The clause's non-transferable nature conflicts with California Civil Code § 980(a)(2), which allows for the transfer of software licenses under certain conditions.", | |
| "relevant_law": "Cal. Civ. Code § 980(a)(2)", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=980.&lawCode=CIV" | |
| }, | |
| { | |
| "right": "Multiple Backup Copies", | |
| "description": "The clause restricts the user to making only one backup copy of the software, which conflicts with Tex. Bus. & Com. Code § 35.51 that permits multiple backup copies.", | |
| "relevant_law": "Tex. Bus. & Com. Code § 35.51", | |
| "url": "https://statutes.capitol.texas.gov/Docs/BC/htm/BC.35.htm" | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "1. Description of Software", | |
| "analysis": [ | |
| { | |
| "clause": "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 (âDeviceâ). 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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the requirement to associate the software with a LinkedIn account to enable full functionality violate any federal laws regarding user autonomy and data privacy?", | |
| "law": "Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. §§ 2510-2523", | |
| "conflict": "The clause mandates that users must associate the software with their LinkedIn account to access its full functionality, which could be seen as a form of forced data sharing.", | |
| "relevance": "The Electronic Communications Privacy Act of 1986 (ECPA) prohibits unauthorized access to electronic communications and data sharing without user consent. However, there is a concern that requiring users to associate the software with their LinkedIn account to access full functionality could be interpreted as a form of unauthorized data sharing if users are not fully informed or if consent is not explicitly obtained.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter119&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the requirement to associate the software with a LinkedIn account to enable full functionality violate any federal laws regarding consumer protection and unfair practices?", | |
| "law": "Federal Trade Commission Act, 15 U.S.C. §§ 41-58", | |
| "conflict": "The clause could be seen as an unfair practice by limiting the software's functionality unless users associate it with their LinkedIn account.", | |
| "relevance": "The Federal Trade Commission Act prohibits unfair or deceptive acts or practices in commerce. However, there is a concern that the clause could be interpreted as an unfair practice by restricting the software's full functionality unless users associate it with their LinkedIn account, potentially deceiving users about the software's capabilities.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter2&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the requirement to associate the software with a LinkedIn account to enable full functionality violate any state laws regarding user autonomy and software usage?", | |
| "law": "California Consumer Privacy Act (CCPA), Cal. Civ. Code § 1798.100 et seq.", | |
| "conflict": "The clause mandates that users must associate the software with a LinkedIn account to enable its full functionality, which may conflict with state laws that protect user autonomy and prohibit mandatory account associations for software usage.", | |
| "relevance": "The California Consumer Privacy Act (CCPA) prohibits mandatory account associations for software usage without explicit user consent and transparency. However, a clause in LinkedIn's terms requires users to associate the software with a LinkedIn account to enable full functionality, potentially violating user autonomy and consent provisions under the CCPA.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&part=4.&lawCode=CIV&title=1.81.5" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "User Autonomy", | |
| "reasoning": "The requirement to associate the software with a LinkedIn account to enable full functionality may infringe upon users' autonomy by forcing them to link their account, thereby limiting their freedom to use the software independently." | |
| }, | |
| { | |
| "right": "Data Privacy", | |
| "reasoning": "Mandating the association of the software with a LinkedIn account could be seen as forced data sharing, potentially violating users' data privacy rights if they are not fully informed or if explicit consent is not obtained." | |
| }, | |
| { | |
| "right": "Consumer Protection", | |
| "reasoning": "The clause could be interpreted as an unfair practice under consumer protection laws by restricting the software's full functionality unless users associate it with their LinkedIn account, potentially misleading users about the software's capabilities." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "3. Title", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the clause in the EULA conflict with any federal laws regarding intellectual property rights and software ownership?", | |
| "law": "Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq.", | |
| "conflict": "The clause may conflict with certain provisions of the Digital Millennium Copyright Act (DMCA) and the Computer Software Rental Amendments Act.", | |
| "relevance": "The DMCA prohibits the circumvention of technological measures that control access to copyrighted works. However, there is a potential conflict with the EULA clause, which may imply restrictions that could be seen as circumventing user rights granted under the DMCA, particularly in relation to fair use and reverse engineering for interoperability.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter12&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the clause in the EULA conflict with any federal laws regarding software rental and leasing?", | |
| "law": "Computer Software Rental Amendments Act, 17 U.S.C. § 109(b)", | |
| "conflict": "The clause may conflict with the Computer Software Rental Amendments Act, which restricts the rental, lease, or lending of software.", | |
| "relevance": "The Computer Software Rental Amendments Act restricts the rental, lease, or lending of software. The EULA clause's assertion of ownership and rights by LinkedIn may conflict with user rights under this Act, particularly if the EULA is interpreted to allow practices that the Act restricts.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/section109&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the clause in the EULA conflict with state laws regarding implied warranties and consumer rights?", | |
| "law": "California Civil Code § 1790-1795.8 (Song-Beverly Consumer Warranty Act)", | |
| "conflict": "The clause in the EULA states that no other rights are granted, whether express or implied, which may conflict with state laws that protect consumers' implied rights and warranties.", | |
| "relevance": "The California Civil Code provides implied warranties and consumer rights. However, there is a conflict with a clause in the End User License Agreement (EULA) which states that no other rights are granted, whether express or implied. This EULA clause directly conflicts with California's consumer protection laws that ensure implied warranties.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=1.7.&part=4.&chapter=1.&article=1." | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the clause in the EULA conflict with state laws regarding the transfer of software ownership?", | |
| "law": "New York General Business Law § 349 (Deceptive Acts and Practices Unlawful)", | |
| "conflict": "The clause in the EULA asserts LinkedIn's ownership of all rights, which may conflict with state laws that recognize the transfer of software ownership upon sale.", | |
| "relevance": "New York General Business Law prohibits deceptive acts and practices. This law may conflict with a clause in LinkedIn's End User License Agreement (EULA) that asserts LinkedIn's ownership of all rights. The conflict arises because the EULA's assertion of ownership may be seen as deceptive if it contradicts the consumer's understanding of ownership transfer upon purchase.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GBS/349" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Fair Use and Reverse Engineering", | |
| "reasoning": "The clause may conflict with the Digital Millennium Copyright Act (DMCA), which allows for certain fair use exceptions and reverse engineering for interoperability. By asserting that no other rights are granted, the EULA may be seen as restricting these user rights." | |
| }, | |
| { | |
| "right": "Software Rental and Leasing", | |
| "reasoning": "The clause may conflict with the Computer Software Rental Amendments Act, which restricts the rental, lease, or lending of software. The EULA's assertion of ownership and rights by LinkedIn may imply practices that the Act restricts." | |
| }, | |
| { | |
| "right": "Implied Warranties and Consumer Rights", | |
| "reasoning": "The clause may conflict with the California Civil Code (Song-Beverly Consumer Warranty Act), which provides implied warranties and consumer rights. By stating that no other rights are granted, whether express or implied, the EULA may violate these state-protected consumer rights." | |
| }, | |
| { | |
| "right": "Transfer of Software Ownership", | |
| "reasoning": "The clause may conflict with New York General Business Law, which prohibits deceptive acts and practices. The EULA's assertion of LinkedIn's ownership of all rights may be seen as deceptive if it contradicts the consumer's understanding of ownership transfer upon purchase." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "7. Right to Terminate or Modify Software", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the clause comply with federal laws regarding contract modifications and terminations?", | |
| "law": "15 U.S.C. § 45 - Unfair methods of competition unlawful; prevention by Commission", | |
| "conflict": "The clause allows LinkedIn to modify the EULA without notice, which may conflict with federal laws requiring reasonable notice for contract modifications.", | |
| "relevance": "The Federal Trade Commission (FTC) may deem unilateral modifications without notice as unfair methods of competition. This means that LinkedIn's right to modify the End User License Agreement (EULA) without notice could be considered an unfair method of competition under 15 U.S.C. § 45.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the clause comply with federal laws regarding contract terminations?", | |
| "law": "15 U.S.C. § 1693c - Terms and conditions of transfers", | |
| "conflict": "The clause allows either party to terminate the EULA with or without notice, which may conflict with federal laws requiring reasonable notice for contract terminations.", | |
| "relevance": "The Electronic Fund Transfer Act (EFTA) requires reasonable notice for termination. However, the End User License Agreement (EULA) contains a provision that allows termination without notice, which may conflict with the EFTA's requirement for reasonable notice.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1693c&num=0&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the clause comply with state laws regarding modification and termination of software agreements?", | |
| "law": "Cal. Civ. Code § 1698", | |
| "conflict": "The clause allows LinkedIn to modify the EULA without notice, which may conflict with state laws requiring reasonable notice for contract modifications.", | |
| "relevance": "According to the law, any party may modify a written contract, but only with the consent of the other party. However, LinkedIn's clause states that LinkedIn may modify the Software and this EULA without notice, which is not aligned with the legal requirement for mutual consent.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=1698" | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the clause comply with state laws regarding termination of software agreements?", | |
| "law": "N.Y. Gen. Oblig. Law § 5-1103", | |
| "conflict": "The clause allows either party to terminate the EULA with or without notice, which may conflict with state laws requiring reasonable notice for contract termination.", | |
| "relevance": "According to the law, any party may terminate a contract with reasonable notice. However, the clause in question states that either party may terminate this EULA with or without notice, which is not aligned with the legal requirement.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GOB/5-1103" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Right to Reasonable Notice for Contract Modifications", | |
| "reasoning": "The clause allows LinkedIn to modify the EULA without notice, which may conflict with federal laws such as 15 U.S.C. § 45 and state laws like Cal. Civ. Code § 1698 that require reasonable notice or mutual consent for contract modifications." | |
| }, | |
| { | |
| "right": "Right to Reasonable Notice for Contract Terminations", | |
| "reasoning": "The clause allows either party to terminate the EULA with or without notice, which may conflict with federal laws such as 15 U.S.C. § 1693c and state laws like N.Y. Gen. Oblig. Law § 5-1103 that require reasonable notice for contract terminations." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "6. No Warranty", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does federal law allow the exclusion of implied warranties in software agreements?", | |
| "law": "Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312", | |
| "conflict": "The clause attempts to exclude all implied warranties, which may not be permissible under certain federal laws.", | |
| "relevance": "The Magnuson-Moss Warranty Act prohibits the disclaimer of implied warranties if a written warranty is provided. The clause disclaims all implied warranties, which may conflict with the Act if a written warranty is provided.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter50&edition=prelim" | |
| }, | |
| { | |
| "question": "Are there federal laws that protect consumers from unfair warranty disclaimers?", | |
| "law": "Federal Trade Commission Act, 15 U.S.C. § 45", | |
| "conflict": "The clause's broad disclaimer of warranties may be seen as unfair and deceptive under federal law.", | |
| "relevance": "The Federal Trade Commission Act prohibits unfair or deceptive acts or practices in commerce. The broad disclaimer of warranties in the clause could be considered an unfair or deceptive practice under the Act.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter2/subchapter1&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the state law allow the exclusion of implied warranties?", | |
| "law": "Cal. Civ. Code § 1792", | |
| "conflict": "The state law does not allow the exclusion of implied warranties, which directly conflicts with the clause's disclaimer of implied warranties.", | |
| "relevance": "California Civil Code Section 1792 implies warranties of merchantability and fitness for a particular purpose on all consumer goods sold in California. This means that these warranties are automatically included with the sale of consumer goods and cannot be waived or disclaimed. However, if a warranty disclaimer clause attempts to disclaim all implied warranties, including merchantability and fitness for a particular purpose, it would directly conflict with California law. The law mandates that these implied warranties cannot be waived or disclaimed, making any such disclaimer clause invalid.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1792.&lawCode=CIV" | |
| }, | |
| { | |
| "state": "Massachusetts", | |
| "question": "Does the state law allow the exclusion of implied warranties?", | |
| "law": "Mass. Gen. Laws ch. 106, § 2-316A", | |
| "conflict": "The state law does not allow the exclusion of implied warranties, which directly conflicts with the clause's disclaimer of implied warranties.", | |
| "relevance": "Massachusetts General Laws Chapter 106, Section 2-316A prohibits the exclusion or modification of implied warranties of merchantability and fitness for a particular purpose in consumer transactions. This directly conflicts with a warranty disclaimer clause that disclaims all implied warranties, including merchantability and fitness for a particular purpose, as the Massachusetts law does not allow such exclusions or modifications in consumer transactions.", | |
| "url": "https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter106/Article2/Section2-316A" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Right to Implied Warranties", | |
| "reasoning": "The clause attempts to disclaim all implied warranties, including those of merchantability and fitness for a particular purpose. This may violate federal and state laws that protect consumers by ensuring these warranties cannot be waived or disclaimed." | |
| }, | |
| { | |
| "right": "Right to Non-Deceptive Practices", | |
| "reasoning": "The broad disclaimer of warranties could be considered an unfair or deceptive practice under the Federal Trade Commission Act, which protects consumers from unfair or deceptive acts in commerce." | |
| }, | |
| { | |
| "right": "Right to Consumer Protections under State Law", | |
| "reasoning": "State laws in California and Massachusetts, among others, prohibit the exclusion of implied warranties in consumer transactions. The clause's attempt to disclaim these warranties directly conflicts with these state laws, potentially violating consumers' rights under state law." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "10. Indemnification", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the indemnification clause unfairly limit the user's rights or impose excessive liability?", | |
| "law": "15 U.S.C. § 45 - Unfair methods of competition unlawful; prevention by Commission", | |
| "conflict": "The clause may impose excessive liability on the user, which could be considered unconscionable under certain circumstances.", | |
| "relevance": "The Federal Trade Commission (FTC) prohibits unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce. The indemnification clause could be seen as an unfair or deceptive practice if it imposes excessive liability on the user, which may be considered unconscionable and thus in violation of 15 U.S.C. § 45.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the clause violate any consumer protection laws by imposing unfair terms?", | |
| "law": "15 U.S.C. § 2301 - Definitions (Magnuson-Moss Warranty Act)", | |
| "conflict": "The clause may be considered unfair and unenforceable if it imposes excessive liability on the user.", | |
| "relevance": "The Magnuson-Moss Warranty Act provides minimum standards for warranties and protects consumers from unfair warranty terms. If the indemnification clause is deemed to impose unfair terms on the user, it could be in violation of the Magnuson-Moss Warranty Act, which aims to protect consumers from such practices.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section2301&num=0&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the indemnification clause violate state laws that limit or prohibit certain types of indemnification?", | |
| "law": "Cal. Civ. Code § 2778", | |
| "conflict": "The clause may be overly broad and attempt to indemnify LinkedIn for types of damages or situations that state law prohibits.", | |
| "relevance": "California Civil Code Section 2778 prohibits indemnification for willful misconduct and gross negligence. However, LinkedIn Corporation's clause seeks indemnification for direct, indirect, incidental, special, consequential, and exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software. This creates a conflict because California law explicitly prohibits indemnification for willful misconduct and gross negligence, which the clause does not exclude.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2778&lawCode=CIV" | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the indemnification clause violate state laws that limit the scope of indemnification?", | |
| "law": "N.Y. Gen. Oblig. Law § 5-322.1", | |
| "conflict": "The clause may attempt to indemnify LinkedIn for types of damages that state law limits or prohibits.", | |
| "relevance": "New York General Obligations Law § 5-322.1 limits indemnification for negligence and willful misconduct. However, LinkedIn Corporation seeks indemnification for direct, indirect, incidental, special, consequential, and exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software. This creates a conflict because New York law restricts indemnification for negligence and willful misconduct, which the clause does not exclude.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GOB/5-322.1" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Protection from Unfair Competition and Deceptive Practices", | |
| "reasoning": "The indemnification clause may impose excessive liability on the user, which could be considered unconscionable and thus in violation of 15 U.S.C. § 45. This law prohibits unfair methods of competition and unfair or deceptive acts or practices in commerce." | |
| }, | |
| { | |
| "right": "Protection from Unfair Warranty Terms", | |
| "reasoning": "The clause may be considered unfair and unenforceable if it imposes excessive liability on the user, potentially violating the Magnuson-Moss Warranty Act (15 U.S.C. § 2301), which aims to protect consumers from unfair warranty terms." | |
| }, | |
| { | |
| "right": "Protection from Indemnification for Willful Misconduct and Gross Negligence (California)", | |
| "reasoning": "California Civil Code Section 2778 prohibits indemnification for willful misconduct and gross negligence. The clause does not exclude these types of damages, potentially violating state law." | |
| }, | |
| { | |
| "right": "Protection from Indemnification for Negligence and Willful Misconduct (New York)", | |
| "reasoning": "New York General Obligations Law § 5-322.1 limits indemnification for negligence and willful misconduct. The clause does not exclude these types of damages, potentially violating state law." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "13. General", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the clause regarding jurisdiction and governing law conflict with any federal laws that mandate specific jurisdiction or governing law for certain types of disputes?", | |
| "law": "Federal Arbitration Act, 9 U.S.C. §§ 1-16", | |
| "conflict": "The clause may conflict with federal laws that mandate specific jurisdiction or governing law for certain types of disputes, such as consumer protection laws or employment laws.", | |
| "relevance": "The Federal Arbitration Act mandates the enforcement of arbitration agreements. However, there may be a conflict with a clause in the End User License Agreement (EULA) that specifies jurisdiction and governing law. The Federal Arbitration Act requires that arbitration agreements be enforced according to their terms, which could potentially override the jurisdiction and governing law specified in the EULA clause.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title9&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the clause regarding assignment conflict with any federal laws that mandate the assignability of certain types of contracts?", | |
| "law": "Bankruptcy Code, 11 U.S.C. § 365", | |
| "conflict": "The clause may conflict with federal laws that mandate the assignability of certain types of contracts, such as intellectual property licenses.", | |
| "relevance": "The Bankruptcy Code allows the assignment of executory contracts, which may include the EULA, despite the clause prohibiting assignment. This creates a conflict because the EULA clause explicitly prohibits the assignment of the agreement, but the Bankruptcy Code overrides this prohibition by permitting such assignments.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title11&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the clause regarding jurisdiction and governing law conflict with any state laws?", | |
| "law": "California Civil Code § 1799.207", | |
| "conflict": "The clause may conflict with state laws that have specific requirements for jurisdiction and governing law in consumer contracts.", | |
| "relevance": "California Civil Code § 1799.207 requires that certain consumer contracts must be governed by California law and disputes must be resolved in California courts. However, there is a negative alignment with this clause for designated countries. For jurisdiction in Ireland, the governing law is the laws of Ireland, excluding conflict of laws rules, and litigation must take place in Dublin, Ireland, with personal jurisdiction in the courts located in Dublin, Ireland. For others outside of designated countries, the jurisdiction is the State of California, U.S.A., the governing law is the laws of the State of California, U.S.A., excluding its conflict of laws rules, and litigation must occur in federal or state courts in Santa Clara County, California, USA, with personal jurisdiction in the courts in Santa Clara County, California, USA.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1799.207&lawCode=CIV" | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the clause regarding assignment conflict with any state laws?", | |
| "law": "New York General Obligations Law § 5-1107", | |
| "conflict": "The clause may conflict with state laws that allow for the assignment of certain types of contracts.", | |
| "relevance": "New York General Obligations Law § 5-1107 allows for the assignment of certain types of contracts unless explicitly prohibited by the contract. However, if a contract includes a clause stating 'You may not assign this EULA, and any assignment of this EULA by you will be null and void,' then the assignment would be prohibited.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GOB/5-1107" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Right to Fair Jurisdiction", | |
| "description": "The clause mandates that disputes for users in Designated Countries be litigated exclusively in Dublin, Ireland, and for others outside of Designated Countries, in Santa Clara County, California, USA. This may be unfair to users who do not reside in these locations, as it imposes a significant burden on them to travel and litigate in a foreign jurisdiction." | |
| }, | |
| { | |
| "right": "Right to Assign Contracts", | |
| "description": "The clause prohibits the assignment of the EULA by the user, which may conflict with federal laws like the Bankruptcy Code that allow the assignment of executory contracts, potentially overriding the user's right to assign the contract in certain situations." | |
| }, | |
| { | |
| "right": "Right to Arbitration", | |
| "description": "The clause specifying jurisdiction and governing law may conflict with the Federal Arbitration Act, which mandates the enforcement of arbitration agreements. This could potentially override the specified jurisdiction and governing law in the EULA, affecting the user's right to arbitration." | |
| }, | |
| { | |
| "right": "Consumer Protection Rights", | |
| "description": "The clause may conflict with state laws, such as California Civil Code § 1799.207, which have specific requirements for jurisdiction and governing law in consumer contracts. This could potentially infringe upon the consumer protection rights of users in those states." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "11. Limitation of Liability", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does federal law allow for the limitation of liability for indirect, incidental, special, consequential, or exemplary damages in consumer contracts?", | |
| "law": "Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.", | |
| "conflict": "The clause attempts to limit LinkedIn's liability for various types of damages, which may conflict with federal consumer protection laws.", | |
| "relevance": "The Magnuson-Moss Warranty Act prohibits disclaimers or modifications of implied warranties and limitations on consequential damages for consumer products. The clause in question attempts to limit LinkedIn's liability for various types of damages, which may be seen as a disclaimer or modification of implied warranties and limitations on consequential damages, potentially conflicting with the Magnuson-Moss Warranty Act.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter50&edition=prelim" | |
| }, | |
| { | |
| "question": "Are there federal laws that restrict the limitation of liability for data breaches and loss of data?", | |
| "law": "Federal Trade Commission Act, 15 U.S.C. § 45", | |
| "conflict": "The clause attempts to limit LinkedIn's liability for loss of data, which may conflict with federal data protection laws.", | |
| "relevance": "The Federal Trade Commission Act prohibits unfair or deceptive acts or practices in or affecting commerce. The clause in question attempts to limit LinkedIn's liability for loss of data, which may be considered an unfair or deceptive act or practice under the Federal Trade Commission Act, especially if users are not adequately informed or protected.", | |
| "url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter2/subchapter1&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the state law allow for the limitation or exclusion of liability for incidental or consequential damages?", | |
| "law": "Cal. Civ. Code § 1668", | |
| "conflict": "The state law explicitly prohibits the limitation or exclusion of liability for incidental or consequential damages, which directly conflicts with LinkedIn's clause.", | |
| "relevance": "California Civil Code Section 1668 prohibits contracts that exempt anyone from responsibility for their own fraud, willful injury to the person or property of another, or violation of law, whether willful or negligent. The clause in question attempts to limit LinkedIn's liability for indirect, incidental, special, consequential, or exemplary damages, which could include willful or negligent violations, thus conflicting with the statute.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1668.&lawCode=CIV" | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the state law allow for the limitation or exclusion of liability for incidental or consequential damages?", | |
| "law": "N.Y. Gen. Oblig. Law § 5-322.1", | |
| "conflict": "The state law explicitly prohibits the limitation or exclusion of liability for incidental or consequential damages, which directly conflicts with LinkedIn's clause.", | |
| "relevance": "New York General Obligations Law § 5-322.1 prohibits agreements that exempt contractors from liability for damages caused by their own negligence. The clause in question attempts to limit LinkedIn's liability for indirect, incidental, special, consequential, or exemplary damages, which could include negligence, thus conflicting with the statute.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GOB/5-322.1" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Right to Recover Damages for Loss of Profits, Goodwill, Use, Data, or Other Intangible Losses", | |
| "reasoning": "The clause limits LinkedIn's liability for indirect, incidental, special, consequential, or exemplary damages, which may include loss of profits, goodwill, use, data, or other intangible losses. This limitation could prevent users from recovering full compensation for these types of damages." | |
| }, | |
| { | |
| "right": "Right to Full Compensation for Data Breaches and Loss of Data", | |
| "reasoning": "The clause attempts to limit LinkedIn's liability for loss of data, which may conflict with federal data protection laws such as the Federal Trade Commission Act. Users may not be able to recover full compensation for data breaches or loss of data." | |
| }, | |
| { | |
| "right": "Right to Protection Under Consumer Protection Laws", | |
| "reasoning": "The clause may conflict with the Magnuson-Moss Warranty Act, which prohibits disclaimers or modifications of implied warranties and limitations on consequential damages for consumer products. This could infringe upon users' rights to protection under federal consumer protection laws." | |
| }, | |
| { | |
| "right": "Right to Protection Against Unfair or Deceptive Acts or Practices", | |
| "reasoning": "The Federal Trade Commission Act prohibits unfair or deceptive acts or practices. Limiting liability for loss of data without adequately informing or protecting users could be considered an unfair or deceptive act, infringing upon users' rights under this federal law." | |
| }, | |
| { | |
| "right": "Right to Full Compensation for Incidental or Consequential Damages in California", | |
| "reasoning": "California Civil Code Section 1668 prohibits contracts that exempt anyone from responsibility for their own fraud, willful injury, or violation of law. The clause's limitation on liability for incidental or consequential damages could violate this state law, infringing upon users' rights to full compensation in California." | |
| }, | |
| { | |
| "right": "Right to Full Compensation for Incidental or Consequential Damages in New York", | |
| "reasoning": "New York General Obligations Law § 5-322.1 prohibits agreements that exempt contractors from liability for damages caused by their own negligence. The clause's limitation on liability for incidental or consequential damages could violate this state law, infringing upon users' rights to full compensation in New York." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "8. U.S. Government Restricted Rights", | |
| "analysis": [ | |
| { | |
| "clause": "By accepting delivery, the government agrees that the Software and accompanying documentation qualifies as âcommercialâ 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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the clause in the EULA conflict with federal laws governing the procurement and use of commercial computer software by the government?", | |
| "law": "41 U.S.C. § 3301 - Full and open competition", | |
| "conflict": "The clause attempts to impose terms that may conflict with federal procurement laws and regulations.", | |
| "relevance": "41 U.S.C. § 3301 requires full and open competition in federal procurement. However, the clause in the EULA attempts to impose terms that may limit the government's ability to engage in full and open competition, which is a requirement under federal law.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3301&num=0&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the clause in the EULA conflict with federal laws governing the rights of the government to use and disclose commercial computer software?", | |
| "law": "48 C.F.R. § 12.212 - Computer software", | |
| "conflict": "The clause attempts to impose terms that may conflict with the government's rights under federal law.", | |
| "relevance": "48 C.F.R. § 12.212 governs the acquisition of commercial computer software by the government. The clause in the EULA attempts to impose terms that may conflict with the government's rights under this regulation, which governs the acquisition and use of commercial computer software.", | |
| "url": "https://www.ecfr.gov/current/title-48/chapter-1/subchapter-B/part-12/subpart-12.2/section-12.212" | |
| }, | |
| { | |
| "question": "Does the clause in the EULA conflict with federal laws governing the return of unused software?", | |
| "law": "48 C.F.R. § 52.227-19 - Commercial Computer Software License", | |
| "conflict": "The clause attempts to impose terms that may conflict with federal laws governing the return of unused software.", | |
| "relevance": "48 C.F.R. § 52.227-19 provides guidance on the licensing of commercial computer software. The clause in the EULA attempts to impose terms that may conflict with the guidance provided by this regulation, particularly regarding the return of unused software.", | |
| "url": "https://www.ecfr.gov/current/title-48/chapter-1/subchapter-H/part-52/subpart-52.2/section-52.227-19" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the clause in the EULA conflict with state laws regarding the enforceability of terms that supersede conflicting terms and conditions?", | |
| "law": "Cal. Civ. Code § 1670.5 (West 2023)", | |
| "conflict": "The clause attempts to supersede any conflicting terms and conditions, which may not be enforceable under certain state laws.", | |
| "relevance": "California Civil Code Section 1670.5 states that if a court finds a contract or any clause of the contract to be unconscionable at the time it was made, the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause. This directly conflicts with the EULA clause that attempts to supersede any conflicting terms and conditions, as California law allows for judicial review and potential nullification of unconscionable terms.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV" | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the clause in the EULA conflict with state laws regarding the return of software if terms are inconsistent with federal law?", | |
| "law": "N.Y. Gen. Bus. Law § 349 (McKinney 2023)", | |
| "conflict": "The clause requires the government to return the software if the EULA is inconsistent with federal law, which may not be enforceable under certain state laws.", | |
| "relevance": "New York General Business Law Section 349 prohibits deceptive acts or practices in the conduct of any business, trade, or commerce, or in the furnishing of any service in New York. This law could be interpreted to conflict with a clause in an End User License Agreement (EULA) that requires the return of software if the terms are inconsistent with federal law, as it may be seen as a deceptive practice to enforce such a return policy.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GBS/349" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Full and Open Competition in Federal Procurement", | |
| "law": "41 U.S.C. § 3301", | |
| "reasoning": "The clause in the EULA attempts to impose terms that may limit the government's ability to engage in full and open competition, which is a requirement under federal law." | |
| }, | |
| { | |
| "right": "Government's Rights to Use and Disclose Commercial Computer Software", | |
| "law": "48 C.F.R. § 12.212", | |
| "reasoning": "The clause in the EULA attempts to impose terms that may conflict with the government's rights under federal regulations governing the acquisition and use of commercial computer software." | |
| }, | |
| { | |
| "right": "Return of Unused Software", | |
| "law": "48 C.F.R. § 52.227-19", | |
| "reasoning": "The clause in the EULA attempts to impose terms that may conflict with federal laws governing the return of unused software." | |
| }, | |
| { | |
| "right": "Enforceability of Terms that Supersede Conflicting Terms and Conditions", | |
| "law": "Cal. Civ. Code § 1670.5", | |
| "reasoning": "The clause in the EULA attempts to supersede any conflicting terms and conditions, which may not be enforceable under California law that allows for judicial review and potential nullification of unconscionable terms." | |
| }, | |
| { | |
| "right": "Prohibition of Deceptive Acts or Practices", | |
| "law": "N.Y. Gen. Bus. Law § 349", | |
| "reasoning": "The clause in the EULA requires the government to return the software if the EULA is inconsistent with federal law, which may be seen as a deceptive practice under New York law." | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "4. Restrictions", | |
| "analysis": [ | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does any federal law explicitly allow the use of software in a manner that would otherwise be restricted by privacy or intellectual property laws?", | |
| "law": "17 U.S.C. § 107 - Limitations on exclusive rights: Fair use", | |
| "conflict": "The clause requires compliance with all applicable laws, including privacy and intellectual property laws, which may conflict with certain federal laws that provide exceptions or allowances.", | |
| "relevance": "17 U.S.C. § 107 provides limitations on exclusive rights under the doctrine of fair use. However, there is a potential conflict with a clause that states: 'You shall only use the Software in a manner that complies with any and all applicable laws, including privacy and intellectual property rights.' The fair use doctrine under 17 U.S.C. § 107 allows certain uses of copyrighted material without permission, which may conflict with the clause's requirement to comply with all intellectual property laws.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section107&num=0&edition=prelim" | |
| }, | |
| { | |
| "question": "Does any federal law explicitly allow the use of software in a manner that would otherwise be restricted by privacy laws?", | |
| "law": "18 U.S.C. § 2511 - Interception and disclosure of wire, oral, or electronic communications prohibited", | |
| "conflict": "The clause requires compliance with all applicable privacy laws, which may conflict with certain federal laws that provide exceptions or allowances.", | |
| "relevance": "18 U.S.C. § 2511 prohibits the interception and disclosure of wire, oral, or electronic communications. However, certain exceptions under this statute allow for the interception of communications under specific circumstances. This may conflict with a clause that states, 'You shall only use the Software in a manner that complies with any and all applicable laws, including privacy and intellectual property rights,' as the clause requires compliance with all privacy laws without acknowledging the exceptions provided by 18 U.S.C. § 2511.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section2511&num=0&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [] | |
| } | |
| }, | |
| { | |
| "clause": "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.", | |
| "reasoning": { | |
| "potentially_conflicting_federal_laws": [ | |
| { | |
| "question": "Does the clause restrict activities that are protected under federal law?", | |
| "law": "17 U.S.C. § 1201(f) - Reverse Engineering", | |
| "conflict": "The clause restricts reverse engineering, which is protected under certain circumstances by federal law.", | |
| "relevance": "17 U.S.C. § 1201(f) permits reverse engineering for the purpose of achieving interoperability of an independently created computer program with other programs. The clause prohibits reverse engineering, which directly conflicts with the rights granted under 17 U.S.C. § 1201(f).", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section1201&num=0&edition=prelim" | |
| }, | |
| { | |
| "question": "Does the clause restrict activities that are protected under federal law?", | |
| "law": "17 U.S.C. § 107 - Limitations on exclusive rights: Fair use", | |
| "conflict": "The clause restricts the creation of derivative works, which may be protected under the fair use doctrine.", | |
| "relevance": "17 U.S.C. § 107 allows the creation of derivative works under the fair use doctrine. However, there is a clause that prohibits the creation of derivative works, which may conflict with the fair use rights granted under 17 U.S.C. § 107.", | |
| "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section107&num=0&edition=prelim" | |
| } | |
| ], | |
| "potentially_conflicting_state_laws": [ | |
| { | |
| "state": "California", | |
| "question": "Does the law allow reverse engineering for interoperability purposes?", | |
| "law": "Cal. Civ. Code § 3426.1", | |
| "conflict": "The clause prohibits reverse engineering, but the law allows it under certain conditions.", | |
| "relevance": "The California Civil Code allows reverse engineering for interoperability purposes. However, an End User License Agreement (EULA) clause may prohibit reverse engineering, except to the extent that such a prohibition is not permitted under applicable law.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=3426.1" | |
| }, | |
| { | |
| "state": "New York", | |
| "question": "Does the law allow the creation of derivative works under certain conditions?", | |
| "law": "N.Y. Gen. Bus. Law § 349", | |
| "conflict": "The clause prohibits creating derivative works, but the law allows it under certain conditions.", | |
| "relevance": "New York General Business Law allows the creation of derivative works under certain conditions. However, this may conflict with an EULA clause that prohibits the creation of derivative works.", | |
| "url": "https://www.nysenate.gov/legislation/laws/GBS/349" | |
| } | |
| ] | |
| } | |
| } | |
| ], | |
| "legal_rights_potentially_violated": [ | |
| { | |
| "right": "Fair Use", | |
| "description": "The clause requiring compliance with all intellectual property laws may conflict with the fair use doctrine under 17 U.S.C. § 107, which allows certain uses of copyrighted material without permission. This could potentially restrict users from engaging in activities that are legally protected under fair use." | |
| }, | |
| { | |
| "right": "Reverse Engineering for Interoperability", | |
| "description": "The clause prohibiting reverse engineering conflicts with 17 U.S.C. § 1201(f), which permits reverse engineering for the purpose of achieving interoperability of an independently created computer program with other programs. This restriction could prevent users from exercising their legal right to reverse engineer software for interoperability purposes." | |
| }, | |
| { | |
| "right": "Interception of Communications under Specific Circumstances", | |
| "description": "The clause requiring compliance with all privacy laws may conflict with 18 U.S.C. § 2511, which provides exceptions for the interception of communications under specific circumstances. This could potentially restrict users from engaging in activities that are legally permitted under these exceptions." | |
| }, | |
| { | |
| "right": "Creation of Derivative Works under Fair Use", | |
| "description": "The clause prohibiting the creation of derivative works may conflict with the fair use doctrine under 17 U.S.C. § 107, which allows the creation of derivative works under certain conditions. This restriction could prevent users from engaging in legally protected activities related to the creation of derivative works." | |
| }, | |
| { | |
| "right": "Reverse Engineering under California Law", | |
| "description": "The clause prohibiting reverse engineering may conflict with Cal. Civ. Code § 3426.1, which allows reverse engineering for interoperability purposes. This restriction could prevent users in California from exercising their legal right to reverse engineer software for interoperability." | |
| }, | |
| { | |
| "right": "Creation of Derivative Works under New York Law", | |
| "description": "The clause prohibiting the creation of derivative works may conflict with N.Y. Gen. Bus. Law § 349, which allows the creation of derivative works under certain conditions. This restriction could prevent users in New York from engaging in legally protected activities related to the creation of derivative works." | |
| } | |
| ] | |
| } | |
| marcfawzi |
Sign up for free
to join this conversation on GitHub.
Already have an account?
Sign in to comment