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{
"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": {
"federal_laws": [
{
"notes": "The ECPA is relevant as it governs the interception and disclosure of electronic communications, which includes personal information collected through LinkedIn Services or Software.",
"issue": "The clause could potentially infringe on the accepting party's rights by not providing clear and explicit consent mechanisms for the collection, use, and sharing of personal information. This could lead to unauthorized use of personal data, which is a violation of privacy rights.",
"law": "Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2523 (2023).",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter119&edition=prelim"
},
{
"notes": "Although GDPR is a European regulation, it is relevant for LinkedIn as it operates globally and must comply with GDPR when handling data of EU citizens.",
"issue": "The clause may infringe on the accepting party's rights by not ensuring adequate protection and transparency regarding the handling of personal data, potentially leading to misuse or unauthorized sharing of personal information.",
"law": "General Data Protection Regulation, Regulation (EU) 2016/679.",
"url": "https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679"
}
],
"state_laws": [
{
"state": "California",
"notes": "The CCPA is directly relevant as it governs the collection and use of personal information, which is a key aspect of the clause in question.",
"issue": "The clause could potentially infringe on the accepting party's rights by not providing clear and explicit consent mechanisms for the collection, use, and sharing of personal information. This could lead to unauthorized use of personal data, which may violate privacy rights protected under state laws.",
"law": "Cal. Civ. Code § 1798.100 et seq.",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&part=4.&lawCode=CIV&title=1.81.5"
},
{
"state": "New York",
"notes": "The SHIELD Act is relevant as it addresses the protection and handling of personal information, which is central to the clause.",
"issue": "The clause may infringe on the accepting party's rights by not providing adequate transparency and control over their personal information, potentially leading to misuse or unauthorized sharing of their data.",
"law": "N.Y. Gen. Bus. Law § 899-bb",
"url": "https://www.nysenate.gov/legislation/laws/GBS/899-BB"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Privacy: The clause may not provide clear and explicit consent mechanisms for the collection, use, and sharing of personal information, potentially leading to unauthorized use of personal data.",
"Right to Transparency: The clause may lack adequate transparency regarding how personal data is handled, which is essential for users to understand and control their information.",
"Right to Data Protection: The clause may not ensure sufficient protection of personal data, potentially leading to misuse or unauthorized sharing of personal information.",
"Right to Informed Consent: The clause may not provide clear and explicit mechanisms for obtaining informed consent from users before collecting, using, or sharing their personal information."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the specific provisions in the LinkedIn Privacy Policy that relate to the collection, use, and sharing of personal information.",
"reasoning": "Understanding these provisions will help determine whether they comply with relevant federal and state laws."
},
{
"step": 2,
"action": "Compare the LinkedIn Privacy Policy with the requirements of the Electronic Communications Privacy Act (ECPA).",
"reasoning": "The ECPA governs the interception and disclosure of electronic communications, so it is crucial to ensure that LinkedIn's practices do not infringe on users' rights under this law."
},
{
"step": 3,
"action": "Evaluate LinkedIn's compliance with the General Data Protection Regulation (GDPR).",
"reasoning": "As LinkedIn operates globally, it must comply with GDPR when handling data of EU citizens. This includes ensuring transparency, data protection, and obtaining explicit consent."
},
{
"step": 4,
"action": "Assess LinkedIn's practices against the California Consumer Privacy Act (CCPA).",
"reasoning": "The CCPA requires clear and explicit consent mechanisms for the collection, use, and sharing of personal information. It also mandates transparency and control over personal data."
},
{
"step": 5,
"action": "Review LinkedIn's data handling practices in light of the New York SHIELD Act.",
"reasoning": "The SHIELD Act addresses the protection and handling of personal information, requiring adequate transparency and control to prevent misuse or unauthorized sharing of data."
},
{
"step": 6,
"action": "Document any discrepancies or potential violations identified in steps 2-5.",
"reasoning": "This documentation will serve as evidence to argue for the rights of the accepting party against the offering party."
},
{
"step": 7,
"action": "Prepare a legal argument highlighting the identified rights violations and referencing the relevant federal and state laws.",
"reasoning": "A well-structured legal argument will help advocate for the accepting party's rights and ensure compliance with applicable laws."
},
{
"step": 8,
"action": "Engage with LinkedIn to address the identified issues and seek amendments to the clause or the LinkedIn Privacy Policy.",
"reasoning": "Collaborating with LinkedIn to resolve these issues can help protect users' rights and ensure legal compliance."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The DMCA is relevant because it governs the use and distribution of copyrighted software, including open source software. The accepting party must be aware of the implications of using open source software under different license terms to avoid potential violations.",
"issue": "The clause may infringe on the accepting party's rights by imposing additional license terms from open source software that the accepting party may not be fully aware of or understand. This could potentially lead to unintentional violations of those terms, resulting in legal consequences.",
"law": "17 U.S.C. § 1201",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter12&edition=prelim"
},
{
"notes": "The UCC is relevant because it addresses the formation and enforcement of contracts, including software licenses. The accepting party should be aware of their rights and obligations under both the main software license and any applicable open source licenses.",
"issue": "The clause may impose additional obligations on the accepting party without their explicit consent, especially if the open source software licenses have terms that are more restrictive than those of the main software license.",
"law": "U.C.C. § 2-204",
"url": "https://www.law.cornell.edu/ucc/2"
}
],
"state_laws": [
{
"state": "California",
"notes": "The CCPA requires clear communication about data collection and usage, which may be relevant if the open source software collects or uses data in ways not clearly communicated to the accepting party.",
"issue": "The clause may infringe on the accepting party's rights by imposing additional obligations or restrictions through the open source software licenses, which may not be clearly communicated or understood by the accepting party.",
"law": "Cal. Civ. Code § 1798.100 et seq.",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&part=4.&lawCode=CIV&title=1.81.5"
},
{
"state": "New York",
"notes": "This law is relevant as it mandates clear communication of terms and conditions, which may be violated if the open source software licenses are not clearly communicated.",
"issue": "The clause may impose additional legal obligations on the accepting party without their explicit consent or understanding, especially if the open source software licenses contain terms that are more restrictive than those of the main software.",
"law": "N.Y. Gen. Bus. Law § 349",
"url": "https://www.nysenate.gov/legislation/laws/GBS/349"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to clear and explicit consent: The clause may impose additional obligations on the accepting party without their explicit consent, especially if the open source software licenses have terms that are more restrictive than those of the main software license.",
"Right to be informed: The accepting party may not be fully aware of or understand the additional license terms from open source software, which could lead to unintentional violations.",
"Right to data privacy: If the open source software collects or uses data in ways not clearly communicated, it may infringe on the accepting party's data privacy rights.",
"Right to fair business practices: The clause may impose additional legal obligations on the accepting party without their explicit consent or understanding, potentially violating fair business practices."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the specific open source software and its respective license terms provided with the main software.",
"reasoning": "Understanding the specific terms and conditions of the open source software licenses is crucial to determine if they impose additional obligations or restrictions on the accepting party."
},
{
"step": 2,
"action": "Compare the open source software license terms with the main software license terms.",
"reasoning": "This comparison will help identify any additional obligations or restrictions that the open source software licenses may impose on the accepting party."
},
{
"step": 3,
"action": "Evaluate the clarity and communication of the open source software license terms to the accepting party.",
"reasoning": "Assessing whether the open source software license terms were clearly communicated and understood by the accepting party is essential to determine if there was explicit consent."
},
{
"step": 4,
"action": "Use 17 U.S.C. § 1201 (DMCA) to argue that the accepting party must be aware of the implications of using open source software under different license terms to avoid potential violations.",
"reasoning": "The DMCA governs the use and distribution of copyrighted software, including open source software. Highlighting the need for clear communication and understanding of license terms can support the argument that the accepting party's rights were potentially violated."
},
{
"step": 5,
"action": "Invoke U.C.C. § 2-204 to argue that the clause may impose additional obligations on the accepting party without their explicit consent.",
"reasoning": "The UCC addresses the formation and enforcement of contracts, including software licenses. Emphasizing the need for explicit consent can strengthen the argument that the accepting party's rights were potentially violated."
},
{
"step": 6,
"action": "Cite Cal. Civ. Code § 1798.100 et seq. (CCPA) to argue that the clause may infringe on the accepting party's data privacy rights.",
"reasoning": "The CCPA requires clear communication about data collection and usage. If the open source software collects or uses data in ways not clearly communicated, it may violate the accepting party's data privacy rights."
},
{
"step": 7,
"action": "Reference N.Y. Gen. Bus. Law § 349 to argue that the clause may impose additional legal obligations on the accepting party without their explicit consent or understanding.",
"reasoning": "This law mandates clear communication of terms and conditions. If the open source software licenses are not clearly communicated, it may violate fair business practices and the accepting party's rights."
},
{
"step": 8,
"action": "Present a consolidated argument using the identified federal and state laws to advocate for the rights of the accepting party.",
"reasoning": "Combining the arguments based on the DMCA, UCC, CCPA, and New York General Business Law can provide a robust case for the accepting party's rights against the offering party."
}
]
}
{
"section_header": "8. U.S. Government Restricted Rights",
"analysis": [
{
"clause": "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.",
"reasoning": {
"federal_laws": [
{
"notes": "FAR 12.212 is specifically designed to address the acquisition of commercial software by the government, ensuring that the terms are fair and consistent with commercial practices. This law is directly relevant to the clause in question as it governs the government's rights and obligations when acquiring commercial software.",
"issue": "The clause may infringe the accepting party's rights by imposing terms that could be inconsistent with federal law, potentially limiting the government's ability to use and disclose the software as needed for public interest or operational purposes.",
"law": "48 C.F.R. § 12.212",
"url": "https://uscode.house.gov/"
},
{
"notes": "FAR 52.227-19 ensures that the government retains necessary rights to use and disclose commercial software, which is crucial for maintaining operational efficiency and public interest. This law is directly relevant to the clause as it addresses the government's rights in relation to commercial software.",
"issue": "The clause may infringe the accepting party's rights by requiring the return of the software if the EULA is inconsistent with federal law, which could disrupt government operations and lead to additional costs.",
"law": "48 C.F.R. § 52.227-19",
"url": "https://uscode.house.gov/"
}
],
"state_laws": []
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Use Software Consistently with Federal Law: The clause may infringe upon the government's right to use the software in a manner consistent with federal laws such as FAR 12.212 and FAR 52.227-19.",
"Right to Disclosure and Operational Efficiency: The clause could limit the government's ability to disclose the software as needed for public interest or operational purposes, which is protected under FAR 52.227-19.",
"Right to Avoid Unnecessary Costs: By requiring the return of the software if the EULA is inconsistent with federal law, the clause could impose additional costs and operational disruptions on the government."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the Inconsistencies",
"details": "Review the terms and conditions of the EULA to identify any inconsistencies with federal laws such as FAR 12.212 and FAR 52.227-19."
},
{
"step": 2,
"action": "Reference FAR 12.212",
"details": "Cite 48 C.F.R. § 12.212, which governs the acquisition of commercial software by the government, to argue that the terms of the EULA must be fair and consistent with commercial practices."
},
{
"step": 3,
"action": "Reference FAR 52.227-19",
"details": "Cite 48 C.F.R. § 52.227-19, which ensures that the government retains necessary rights to use and disclose commercial software, to argue that the clause limiting disclosure and requiring return of the software is inconsistent with federal law."
},
{
"step": 4,
"action": "Highlight Operational Impact",
"details": "Emphasize the potential operational disruptions and additional costs that could arise from the requirement to return the software if the EULA is inconsistent with federal law."
},
{
"step": 5,
"action": "Propose Amendments",
"details": "Suggest amendments to the EULA that align with federal laws and protect the government's rights to use, disclose, and retain the software without unnecessary costs or disruptions."
},
{
"step": 6,
"action": "Seek Legal Counsel",
"details": "Consult with legal counsel specializing in government contracts to ensure that the proposed amendments are legally sound and effectively protect the government's rights."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The EAR is directly relevant to the offering and accepting parties as it governs the export of commercial software, which includes the software provided under this EULA. Compliance with the EAR is mandatory, and failure to adhere to its provisions can result in significant penalties.",
"issue": "The clause could potentially infringe on the accepting party's rights by imposing restrictions that may be overly broad or not clearly defined, leading to legal uncertainties and potential liabilities for the accepting party. This could limit the accepting party's ability to use the software freely and could result in penalties for unintentional violations of export regulations.",
"law": "15 C.F.R. §§ 730-774 (2023)",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter7/subchapter1&edition=prelim"
},
{
"notes": "While ITAR primarily focuses on defense-related items, certain software with encryption or other sensitive capabilities may fall under its purview. The accepting party must be aware of these regulations to avoid unintentional violations.",
"issue": "The clause could infringe on the accepting party's rights by imposing restrictions that may not be clearly communicated or understood, leading to inadvertent non-compliance and potential legal consequences. This could create a burden on the accepting party to constantly monitor and ensure compliance with complex export regulations.",
"law": "22 C.F.R. §§ 120-130 (2023)",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title22/chapter39&edition=prelim"
}
],
"state_laws": []
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Use Software Freely: The clause imposes restrictions on the use, import, export, re-export, and transfer of the software, which could limit the accepting party's ability to use the software as they see fit.",
"Right to Clear and Understandable Terms: The clause may be overly broad or not clearly defined, leading to legal uncertainties and potential liabilities for the accepting party.",
"Right to Avoid Unintentional Legal Violations: The clause could result in penalties for unintentional violations of export regulations, placing an undue burden on the accepting party to constantly monitor and ensure compliance with complex export regulations."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the specific export regulations that apply to the software provided under the EULA.",
"reasoning": "Understanding the exact regulations (e.g., EAR, ITAR) that govern the software is crucial for determining the scope and applicability of the export restrictions imposed by the clause."
},
{
"step": 2,
"action": "Analyze the clause in the context of the identified regulations.",
"reasoning": "Assess whether the clause accurately reflects the requirements of the relevant export regulations and whether it imposes any additional, unnecessary restrictions on the accepting party."
},
{
"step": 3,
"action": "Evaluate the clarity and specificity of the clause.",
"reasoning": "Determine if the clause is overly broad or vague, which could lead to legal uncertainties and potential liabilities for the accepting party. Clear and specific terms are essential to ensure that the accepting party understands their obligations and can comply with them effectively."
},
{
"step": 4,
"action": "Assess the potential impact of the clause on the accepting party's rights.",
"reasoning": "Consider how the clause might limit the accepting party's ability to use the software freely and the potential legal consequences of unintentional violations of export regulations. This includes evaluating the burden placed on the accepting party to monitor and ensure compliance with complex regulations."
},
{
"step": 5,
"action": "Use the identified federal laws (EAR and ITAR) to argue for the rights of the accepting party.",
"reasoning": "Highlight any discrepancies between the clause and the actual requirements of the EAR and ITAR. Emphasize that the clause should not impose additional restrictions beyond what is required by law and that it should be clear and specific to avoid legal uncertainties."
},
{
"step": 6,
"action": "Propose revisions to the clause to protect the accepting party's rights.",
"reasoning": "Suggest modifications to the clause to ensure that it accurately reflects the requirements of the relevant export regulations, is clear and specific, and does not impose unnecessary restrictions on the accepting party. This could include providing more detailed guidance on compliance requirements and clarifying any ambiguous terms."
}
]
}
{
"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 (\"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.",
"reasoning": {
"federal_laws": [
{
"notes": "The Federal Trade Commission Act (FTCA) is a key piece of legislation that addresses unfair or deceptive business practices, which can be relevant in the context of software licensing agreements.",
"issue": "The clause may infringe on the accepting party's rights by imposing restrictions on the use of the software that could limit their ability to fully utilize the LinkedIn Service, potentially leading to issues related to unfair trade practices or consumer protection.",
"law": "15 U.S.C. § 45 (Federal Trade Commission Act)",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter2/subchapter1&edition=prelim"
},
{
"notes": "The Gramm-Leach-Bliley Act (GLBA) includes provisions related to the protection of consumers' personal financial information, which can be relevant in the context of software that requires account association and data sharing.",
"issue": "The clause may infringe on the accepting party's rights by requiring them to associate the software with their LinkedIn account, potentially leading to privacy concerns and issues related to data protection.",
"law": "15 U.S.C. §§ 6801-6809 (Gramm-Leach-Bliley Act)",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter94&edition=prelim"
}
],
"state_laws": [
{
"state": "California",
"notes": "This law is part of the California Consumer Legal Remedies Act (CLRA), which aims to protect consumers against unfair and deceptive business practices.",
"issue": "The clause may infringe on the accepting party's rights by requiring them to associate the software with their LinkedIn account to enable its full functionality, potentially limiting their ability to use the software independently of LinkedIn's services.",
"law": "Cal. Civ. Code § 1770(a)(19) (West 2023)",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1770.&lawCode=CIV"
},
{
"state": "New York",
"notes": "This law is part of the New York General Business Law, which aims to protect consumers from deceptive acts and practices in the conduct of any business, trade, or commerce.",
"issue": "The clause may infringe on the accepting party's rights by imposing restrictions on the use of the software that are not clearly disclosed or agreed upon, potentially leading to a lack of transparency and informed consent.",
"law": "N.Y. Gen. Bus. Law § 349 (McKinney 2023)",
"url": "https://www.nysenate.gov/legislation/laws/GBS/349"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Privacy: The requirement to associate the software with a LinkedIn account may infringe on the user's right to privacy by necessitating the sharing of personal data.",
"Right to Fair Use: The clause may limit the user's ability to fully utilize the software independently of LinkedIn's services, potentially infringing on their right to fair use.",
"Right to Transparency: The clause may not clearly disclose the restrictions and requirements, potentially infringing on the user's right to transparency and informed consent.",
"Right to Consumer Protection: The clause may impose unfair or deceptive business practices, potentially infringing on the user's rights under consumer protection laws."
]
},
"legal_rights_advicacy": [
{
"step": "Identify the specific rights being potentially violated by the clause.",
"details": "The clause may infringe on the user's right to privacy, fair use, transparency, and consumer protection."
},
{
"step": "Reference the Federal Trade Commission Act (FTCA).",
"details": "Argue that the clause may constitute an unfair or deceptive business practice by imposing restrictions that limit the user's ability to fully utilize the software, potentially violating 15 U.S.C. § 45."
},
{
"step": "Reference the Gramm-Leach-Bliley Act (GLBA).",
"details": "Argue that the requirement to associate the software with a LinkedIn account may lead to privacy concerns and issues related to data protection, potentially violating 15 U.S.C. §§ 6801-6809."
},
{
"step": "Reference the California Consumer Legal Remedies Act (CLRA).",
"details": "Argue that the clause may limit the user's ability to use the software independently of LinkedIn's services, potentially violating Cal. Civ. Code § 1770(a)(19)."
},
{
"step": "Reference the New York General Business Law.",
"details": "Argue that the clause may impose restrictions that are not clearly disclosed or agreed upon, potentially leading to a lack of transparency and informed consent, violating N.Y. Gen. Bus. Law § 349."
},
{
"step": "Compile evidence and present arguments.",
"details": "Gather evidence of how the clause restricts the user's rights and present arguments based on the identified federal and state laws to advocate for the user's rights against LinkedIn."
},
{
"step": "Seek legal remedies.",
"details": "If necessary, seek legal remedies through appropriate legal channels, such as filing a complaint with the Federal Trade Commission or pursuing legal action under relevant state laws."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "While the Magnuson-Moss Warranty Act primarily deals with warranties, its principles can be applied to argue against overly burdensome indemnification clauses in consumer contracts.",
"issue": "The indemnification obligation clause could potentially infringe on the accepting party's rights by imposing an extensive and potentially unlimited financial burden. This could be seen as unfair, especially if the accepting party is a consumer with limited resources.",
"law": "15 U.S.C. § 2301 et seq.",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter50&edition=prelim"
},
{
"notes": "The Unconscionability Doctrine can be invoked to argue that the indemnification clause is excessively one-sided and should not be enforced.",
"issue": "The clause could be seen as unconscionable if it imposes an excessive burden on the accepting party, especially if the party is a consumer with limited bargaining power.",
"law": "U.C.C. § 2-302",
"url": "https://www.law.cornell.edu/ucc/2/2-302"
}
],
"state_laws": [
{
"state": "California",
"notes": "This law is relevant as it can be used to argue that the indemnification clause in the EULA is unenforceable if it attempts to exempt LinkedIn from liability for its own wrongful acts.",
"issue": "The indemnification obligation clause can potentially infringe on the rights of the accepting party by imposing an extensive and potentially unlimited liability on them. This could include covering a wide range of damages (direct, indirect, incidental, special, consequential, exemplary) and causes (arising out of, relating to, resulting from the use of the Software, or any other matter relating to the Software). Such broad indemnification requirements can be seen as unfair and overly burdensome to the accepting party.",
"law": "Cal. Civ. Code § 1668",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1668.&lawCode=CIV"
},
{
"state": "Texas",
"notes": "This law is relevant as it provides a basis for challenging the enforceability of the indemnification clause if it is deemed to be unconscionable.",
"issue": "The clause could be seen as unconscionable if it imposes an excessive burden on the accepting party, especially if the accepting party had no meaningful opportunity to negotiate the terms.",
"law": "Tex. Bus. & Com. Code § 2.302",
"url": "https://statutes.capitol.texas.gov/Docs/BC/htm/BC.2.htm#2.302"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Fair Contract Terms: The indemnification clause imposes an extensive and potentially unlimited financial burden on the accepting party, which can be seen as unfair and overly burdensome.",
"Right to Protection from Unconscionable Contracts: The clause could be deemed unconscionable if it is excessively one-sided and imposes an excessive burden on the accepting party, especially if the party is a consumer with limited bargaining power.",
"Right to Protection from Liability for Another's Wrongful Acts: The clause may attempt to exempt LinkedIn from liability for its own wrongful acts, which can be seen as unfair and unenforceable under certain state laws."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the specific terms of the indemnification clause that are potentially unfair or overly burdensome.",
"details": "The clause requires the accepting party to indemnify LinkedIn for a wide range of damages (direct, indirect, incidental, special, consequential, exemplary) and causes (arising out of, relating to, resulting from the use of the Software, or any other matter relating to the Software)."
},
{
"step": 2,
"action": "Apply the Magnuson-Moss Warranty Act principles to argue against the clause.",
"details": "While the Act primarily deals with warranties, its principles can be applied to argue that the indemnification clause imposes an extensive and potentially unlimited financial burden on the accepting party, which can be seen as unfair. Reference: 15 U.S.C. § 2301 et seq."
},
{
"step": 3,
"action": "Invoke the Unconscionability Doctrine under the U.C.C.",
"details": "Argue that the clause is excessively one-sided and should not be enforced because it imposes an excessive burden on the accepting party, especially if the party is a consumer with limited bargaining power. Reference: U.C.C. § 2-302."
},
{
"step": 4,
"action": "Apply California Civil Code § 1668 to challenge the clause.",
"details": "Argue that the indemnification clause is unenforceable if it attempts to exempt LinkedIn from liability for its own wrongful acts. Reference: Cal. Civ. Code § 1668."
},
{
"step": 5,
"action": "Use Texas Business and Commerce Code § 2.302 to argue unconscionability.",
"details": "Argue that the clause is unconscionable if it imposes an excessive burden on the accepting party, especially if the accepting party had no meaningful opportunity to negotiate the terms. Reference: Tex. Bus. & Com. Code § 2.302."
},
{
"step": 6,
"action": "Compile evidence of the accepting party's limited bargaining power and resources.",
"details": "Demonstrate that the accepting party, especially if a consumer, had limited ability to negotiate the terms of the EULA and that the clause imposes an undue financial burden."
},
{
"step": 7,
"action": "Present a comprehensive argument to a legal authority or court.",
"details": "Combine the arguments based on federal and state laws to present a strong case that the indemnification clause is unfair, overly burdensome, and potentially unenforceable."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The Magnuson-Moss Warranty Act may provide some protection to the accepting party by ensuring that any disclaimers or limitations of warranties are clearly disclosed and not misleading. However, its applicability may be limited depending on whether the software is considered a 'consumer product' under the Act.",
"issue": "The warranty disclaimer clause may infringe on the accepting party's rights by limiting their ability to seek redress for software defects, errors, or incompatibility issues that could cause significant operational disruptions or financial losses.",
"law": "15 U.S.C. §§ 2301-2312",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter50&edition=prelim"
},
{
"notes": "The UCC's implied warranties may offer protection to the accepting party by ensuring that the software is of a minimum acceptable quality and is suitable for the purpose for which it was purchased. However, the effectiveness of these protections may be limited by the specific terms of the warranty disclaimer in the EULA.",
"issue": "The clause may infringe on the accepting party's rights by disclaiming all implied warranties, which could leave the accepting party without any recourse if the software is not fit for its intended purpose or is not of merchantable quality.",
"law": "U.C.C. §§ 2-314, 2-315",
"url": "https://www.law.cornell.edu/ucc/2"
}
],
"state_laws": [
{
"state": "California",
"notes": "California law provides strong consumer protection, and the implied warranties cannot be waived unless specific conditions are met. This law is directly relevant to the offering and accepting parties as it pertains to software and consumer rights.",
"issue": "The warranty disclaimer clause can potentially infringe the accepting party's rights by leaving them without any recourse if the software fails to perform as expected, contains defects, or is incompatible with their platform. This can result in financial loss, operational disruptions, and other damages without any liability on LinkedIn's part.",
"law": "Cal. Civ. Code § 1792",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1792.&lawCode=CIV"
},
{
"state": "New York",
"notes": "New York law requires that disclaimers of implied warranties be conspicuous and clearly communicated, which may not be the case in LinkedIn's EULA. This law is relevant as it pertains to the sale of goods, including software, and consumer protection.",
"issue": "The disclaimer of all warranties, including implied warranties of merchantability and fitness for a particular purpose, can leave the accepting party without any legal protection if the software is defective or fails to meet their needs.",
"law": "N.Y. U.C.C. Law § 2-316",
"url": "https://www.nysenate.gov/legislation/laws/UCC/2-316"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to a product that meets the minimum standards of quality and performance.",
"Right to seek redress for defects, errors, or incompatibility issues in the software.",
"Right to implied warranties of merchantability and fitness for a particular purpose.",
"Right to clear and conspicuous communication of any disclaimers or limitations of warranties."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the specific issues with the warranty disclaimer clause in LinkedIn's EULA.",
"details": "The clause disclaims all warranties, both express and implied, which may leave the accepting party without any recourse if the software is defective, fails to meet their needs, or is incompatible with their platform."
},
{
"step": 2,
"action": "Refer to the Magnuson-Moss Warranty Act (15 U.S.C. §§ 2301-2312).",
"details": "This federal law ensures that any disclaimers or limitations of warranties are clearly disclosed and not misleading. Argue that LinkedIn's disclaimer may be infringing on the accepting party's rights by not providing clear and conspicuous communication of the limitations."
},
{
"step": 3,
"action": "Invoke the Uniform Commercial Code (U.C.C. §§ 2-314, 2-315).",
"details": "The UCC provides implied warranties of merchantability and fitness for a particular purpose. Argue that LinkedIn's disclaimer of all implied warranties may leave the accepting party without any legal protection if the software is not fit for its intended purpose or is not of merchantable quality."
},
{
"step": 4,
"action": "Apply California Civil Code § 1792.",
"details": "California law provides strong consumer protection, and implied warranties cannot be waived unless specific conditions are met. Argue that LinkedIn's blanket disclaimer may not meet these conditions, thus potentially violating the accepting party's rights under California law."
},
{
"step": 5,
"action": "Refer to New York U.C.C. Law § 2-316.",
"details": "New York law requires that disclaimers of implied warranties be conspicuous and clearly communicated. Argue that LinkedIn's EULA may not meet this requirement, thus potentially leaving the accepting party without legal protection if the software is defective or fails to meet their needs."
},
{
"step": 6,
"action": "Compile evidence of any defects, errors, or incompatibility issues experienced by the accepting party.",
"details": "Document any operational disruptions, financial losses, or other damages caused by the software. Use this evidence to strengthen the argument that the accepting party's rights are being infringed upon by LinkedIn's warranty disclaimer."
},
{
"step": 7,
"action": "Present the legal arguments and evidence to LinkedIn or a relevant legal authority.",
"details": "Use the identified federal and state laws to argue for the rights of the accepting party. Highlight how LinkedIn's warranty disclaimer may be infringing on these rights and seek redress for any damages incurred."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The UCC Article 2 is relevant as it governs the sale of goods and includes provisions that protect parties from unilateral modifications to contracts without mutual consent.",
"issue": "The modification rights clause allows LinkedIn to modify the Software and EULA without notice, which can lead to unexpected changes that may negatively impact the accepting party's use of the software or their legal rights.",
"law": "U.C.C. § 2-209 (Am. Law Inst. & Unif. Law Comm'n 2020)",
"url": "https://www.law.cornell.edu/ucc"
},
{
"notes": "The FTCA is relevant as it provides a framework to protect consumers from unfair business practices, including abrupt termination of services without adequate notice.",
"issue": "The termination rights clause allows either party to terminate the EULA at any time with or without notice, which can lead to abrupt termination of services without giving the accepting party adequate time to transition or seek alternatives.",
"law": "15 U.S.C. § 45 (2018)",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim"
}
],
"state_laws": [
{
"state": "California",
"notes": "The CCPA requires businesses to provide notice to consumers before collecting their personal data and to inform them of any changes to the terms of service that may affect their privacy rights.",
"issue": "The modification rights clause allows LinkedIn to modify the Software and EULA without notice, which can lead to unexpected changes that may negatively impact the accepting party's use of the software.",
"law": "Cal. Civ. Code § 1798.100 et seq.",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&chapter=1.&part=4.&lawCode=CIV&title=1.81.5"
},
{
"state": "New York",
"notes": "This law can be used to argue that abrupt termination without notice is a deceptive practice that harms consumers.",
"issue": "The termination rights clause allows either party to terminate the EULA at any time with or without notice, which can lead to abrupt termination of services without giving the accepting party adequate time to transition.",
"law": "N.Y. Gen. Bus. Law § 349",
"url": "https://www.nysenate.gov/legislation/laws/GBS/349"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Notice: The clause allows LinkedIn to modify the Software and EULA without notice, which can lead to unexpected changes that may negatively impact the accepting party's use of the software or their legal rights.",
"Right to Fair Treatment: The clause allows either party to terminate the EULA at any time with or without notice, which can lead to abrupt termination of services without giving the accepting party adequate time to transition or seek alternatives.",
"Right to Data Privacy: Under the CCPA, consumers have the right to be informed about changes to terms of service that may affect their privacy rights. The clause allowing modifications without notice could violate this right."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the specific rights potentially violated by the clause.",
"details": "The rights potentially violated include the right to notice, the right to fair treatment, and the right to data privacy."
},
{
"step": 2,
"action": "Refer to the relevant federal laws that protect these rights.",
"details": "The UCC Article 2 (U.C.C. § 2-209) protects parties from unilateral modifications to contracts without mutual consent. The FTCA (15 U.S.C. § 45) protects consumers from unfair business practices, including abrupt termination of services without adequate notice."
},
{
"step": 3,
"action": "Refer to the relevant state laws that protect these rights.",
"details": "The CCPA (Cal. Civ. Code § 1798.100 et seq.) requires businesses to provide notice to consumers before collecting their personal data and to inform them of any changes to the terms of service that may affect their privacy rights. New York's General Business Law (N.Y. Gen. Bus. Law § 349) can be used to argue that abrupt termination without notice is a deceptive practice that harms consumers."
},
{
"step": 4,
"action": "Argue that the modification rights clause violates the UCC Article 2.",
"details": "The clause allows LinkedIn to modify the Software and EULA without notice, which can lead to unexpected changes that may negatively impact the accepting party's use of the software or their legal rights. This violates U.C.C. § 2-209, which requires mutual consent for contract modifications."
},
{
"step": 5,
"action": "Argue that the termination rights clause violates the FTCA.",
"details": "The clause allows either party to terminate the EULA at any time with or without notice, which can lead to abrupt termination of services without giving the accepting party adequate time to transition or seek alternatives. This can be considered an unfair business practice under 15 U.S.C. § 45."
},
{
"step": 6,
"action": "Argue that the modification rights clause violates the CCPA.",
"details": "The clause allows LinkedIn to modify the Software and EULA without notice, which can lead to unexpected changes that may negatively impact the accepting party's use of the software. This violates Cal. Civ. Code § 1798.100 et seq., which requires businesses to inform consumers of any changes to the terms of service that may affect their privacy rights."
},
{
"step": 7,
"action": "Argue that the termination rights clause violates New York's General Business Law.",
"details": "The clause allows either party to terminate the EULA at any time with or without notice, which can lead to abrupt termination of services without giving the accepting party adequate time to transition. This can be considered a deceptive practice under N.Y. Gen. Bus. Law § 349."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "This law is relevant as it addresses the rights of end users to make backup copies and use software on multiple devices, which is directly related to the restrictions imposed by the EULA clause.",
"issue": "The clause may infringe on the accepting party's rights by overly restricting the use of the software to a single device and limiting the ability to make backup copies, which could be seen as an unreasonable limitation on the user's ability to fully utilize the software they have legally obtained.",
"law": "Computer Software Rental Amendments Act of 1990, 17 U.S.C. § 109(b) (1990).",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section109&num=0&edition=prelim"
},
{
"notes": "This law is relevant as it addresses the rights of end users to transfer their legally obtained software, which is restricted by the EULA clause.",
"issue": "The clause's restriction on transferring the software could be seen as infringing on the user's right to resell or transfer their legally obtained software, which is protected under the first sale doctrine.",
"law": "17 U.S.C. § 109(a) (1976).",
"url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section109&num=0&edition=prelim"
}
],
"state_laws": [
{
"state": "New York",
"notes": "This law is relevant as it addresses consumer protection from potentially deceptive business practices, which could include overly restrictive software licensing terms.",
"issue": "The clause's restriction on transferring the software to another device could be seen as limiting the consumer's right to fully utilize the software they have purchased, especially if their original device becomes unusable.",
"law": "N.Y. Gen. Bus. Law § 349",
"url": "https://www.nysenate.gov/legislation/laws/GBS/349"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to make backup copies: The clause restricts the user to making only one backup copy, which may be seen as an unreasonable limitation on the user's ability to protect their legally obtained software.",
"Right to use software on multiple devices: The clause restricts the installation of the software to only one device, which could be seen as overly restrictive, especially if the user owns multiple devices or needs to replace a device.",
"Right to transfer software: The clause's non-transferability condition may infringe on the user's right to resell or transfer their legally obtained software, which is protected under the first sale doctrine."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the specific rights being restricted by the EULA clause.",
"details": "The clause restricts the user to making only one backup copy, using the software on only one device, and prohibits transferring the software to another party."
},
{
"step": 2,
"action": "Reference the Computer Software Rental Amendments Act of 1990, 17 U.S.C. § 109(b) (1990).",
"details": "This law addresses the rights of end users to make backup copies and use software on multiple devices. Argue that the clause's restriction on making only one backup copy and using the software on only one device is an unreasonable limitation on the user's ability to fully utilize the software they have legally obtained."
},
{
"step": 3,
"action": "Reference 17 U.S.C. § 109(a) (1976).",
"details": "This law addresses the rights of end users to transfer their legally obtained software. Argue that the clause's non-transferability condition infringes on the user's right to resell or transfer their legally obtained software, which is protected under the first sale doctrine."
},
{
"step": 4,
"action": "Reference New York General Business Law § 349.",
"details": "This state law addresses consumer protection from potentially deceptive business practices. Argue that the clause's restriction on transferring the software to another device limits the consumer's right to fully utilize the software they have purchased, especially if their original device becomes unusable."
},
{
"step": 5,
"action": "Compile the arguments and present them to the offering party (LinkedIn).",
"details": "Use the identified federal and state laws to argue that the EULA clause imposes unreasonable and potentially unlawful restrictions on the user's rights. Request that LinkedIn revise the clause to allow for more reasonable use of the software, including the ability to make multiple backup copies, use the software on multiple devices, and transfer the software to another party."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The Copyright Act of 1976 provides a framework for the protection of intellectual property rights, which could be relevant in assessing the fairness and legality of the restrictions imposed by the EULA.",
"issue": "The clause could potentially infringe on the accepting party's rights by limiting their ability to use, modify, or distribute the software beyond what is expressly granted in the EULA. This could be seen as overly restrictive and could potentially conflict with the accepting party's rights under certain federal laws.",
"law": "17 U.S.C. § 101 et seq.",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17&edition=prelim"
},
{
"notes": "UCC § 2-302 addresses unconscionable contracts or clauses, which could be relevant in evaluating whether the EULA's restrictions are excessively one-sided or unfair to the accepting party.",
"issue": "The clause may infringe on the accepting party's rights by imposing limitations that could be considered unconscionable or unfair under contract law principles.",
"law": "U.C.C. § 2-302",
"url": "https://www.law.cornell.edu/ucc"
}
],
"state_laws": [
{
"state": "California",
"notes": "The CCPA is relevant as it provides rights to consumers regarding their personal data, which could be collected and used by LinkedIn. This law ensures that the accepting party has control over their personal data, which could be impacted by the EULA's terms.",
"issue": "The clause could potentially infringe on the accepting party's rights by limiting their ability to use the software in ways not expressly granted by the EULA, thereby restricting their freedom to utilize the software fully and possibly stifling innovation or customization.",
"law": "Cal. Civ. Code § 1798.100 et seq.",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&chapter=1.&part=4.&lawCode=CIV&title=1.81.5"
},
{
"state": "New York",
"notes": "This law is relevant as it protects consumers from deceptive business practices, which could include unclear or overly restrictive terms in an EULA. It ensures that the accepting party is not misled about the rights they have regarding the software.",
"issue": "The clause could infringe on the accepting party's rights by not granting them any rights beyond those explicitly stated in the EULA, potentially leading to a situation where the accepting party is unable to use the software in a manner that they reasonably expected.",
"law": "N.Y. Gen. Bus. Law § 349",
"url": "https://www.nysenate.gov/legislation/laws/GBS/349"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Modify: The clause restricts the accepting party's ability to modify the software, which could be seen as a limitation on their creative and functional use of the software.",
"Right to Distribute: The clause explicitly states that no rights are granted to distribute the software, which could limit the accepting party's ability to share or redistribute the software, even in a modified form.",
"Right to Use: The clause limits the use of the software to only those rights expressly granted in the EULA, potentially restricting the accepting party's ability to use the software in ways that are not explicitly mentioned but are otherwise reasonable.",
"Right to Innovate: By restricting modifications and distribution, the clause could stifle innovation and customization, which are often essential for businesses and developers.",
"Right to Fair Terms: The clause could be seen as overly restrictive and one-sided, potentially violating principles of fairness and balance in contractual agreements."
]
},
"legal_rights_advicacy": [
{
"step": "Identify the specific rights being restricted by the clause.",
"details": "The clause restricts the accepting party's rights to modify, distribute, and use the software beyond what is expressly granted in the EULA."
},
{
"step": "Reference the Copyright Act of 1976 (17 U.S.C. § 101 et seq.).",
"details": "Argue that the clause's restrictions on modification and distribution could infringe on the accepting party's rights under the Copyright Act, which provides a framework for the protection of intellectual property rights but also allows for certain uses under the doctrine of fair use."
},
{
"step": "Invoke UCC § 2-302 on unconscionable contracts.",
"details": "Argue that the clause is excessively one-sided and unfair, potentially making it unconscionable under UCC § 2-302. This could be used to challenge the enforceability of the clause."
},
{
"step": "Reference California Consumer Privacy Act (Cal. Civ. Code § 1798.100 et seq.).",
"details": "Argue that the clause could impact the accepting party's control over their personal data, as the EULA may limit their ability to use the software in ways that protect their privacy and data rights."
},
{
"step": "Invoke New York General Business Law § 349 on deceptive business practices.",
"details": "Argue that the clause could be seen as deceptive if it misleads the accepting party about the extent of their rights regarding the software. This could be used to challenge the fairness and transparency of the EULA."
},
{
"step": "Propose a balanced approach.",
"details": "Suggest that the EULA be revised to provide more balanced terms that allow for reasonable use, modification, and distribution of the software, while still protecting LinkedIn's intellectual property rights."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The Restatement (Second) of Contracts is a highly respected legal treatise that provides a comprehensive overview of contract law in the United States. It is often cited by courts and legal professionals.",
"issue": "The 'Assignment' clause restricts the accepting party from assigning the EULA to another party, which could potentially limit their ability to transfer their rights and obligations under the agreement. This could be seen as infringing on the accepting party's rights to freely contract and transfer their interests.",
"law": "Restatement (Second) of Contracts § 317 (1981)",
"url": "https://www.ali.org/publications/show/contracts/"
},
{
"notes": "The Restatement (Second) of Contracts provides guidance on how to handle invalid provisions in a contract, ensuring that the remaining provisions can still be enforced.",
"issue": "The 'Severability' clause allows for the modification of provisions deemed contrary to law, which could potentially alter the original intent of the agreement and affect the rights of the accepting party.",
"law": "Restatement (Second) of Contracts § 184 (1981)",
"url": "https://www.ali.org/publications/show/contracts/"
}
],
"state_laws": [
{
"state": "California",
"notes": "This law is directly relevant as it pertains to the assignment of contractual rights, which is restricted by the EULA's 'Assignment' clause.",
"issue": "The 'Assignment' clause restricts the accepting party from assigning the EULA, which could limit their ability to transfer their rights and obligations under the agreement to another party. This could be particularly problematic for businesses that undergo mergers or acquisitions.",
"law": "Cal. Civ. Code § 1458",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1458.&lawCode=CIV"
},
{
"state": "New York",
"notes": "This law is relevant as it addresses the enforceability of contracts with severability clauses, which is directly related to the 'Severability' clause in the EULA.",
"issue": "The 'Severability' clause could potentially be used to enforce the remaining parts of the EULA even if a significant portion is found to be unlawful, which might still disadvantage the accepting party.",
"law": "N.Y. Gen. Oblig. Law § 5-1401",
"url": "https://www.nysenate.gov/legislation/laws/GOB/5-1401"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
{
"right": "Right to freely assign contractual rights and obligations",
"issue": "The 'Assignment' clause restricts the accepting party from assigning the EULA to another party, which could limit their ability to transfer their rights and obligations under the agreement. This could be particularly problematic for businesses that undergo mergers or acquisitions."
},
{
"right": "Right to have contract terms interpreted as originally intended",
"issue": "The 'Severability' clause allows for the modification of provisions deemed contrary to law, which could potentially alter the original intent of the agreement and affect the rights of the accepting party."
},
{
"right": "Right to litigate in a convenient forum",
"issue": "The clause mandating litigation in Dublin, Ireland, or Santa Clara County, California, could impose significant burdens on the accepting party, especially if they are located far from these jurisdictions."
}
]
},
"legal_rights_advicacy": [
{
"step": "Identify the specific clauses in the EULA that potentially violate the accepting party's rights.",
"details": "Focus on the 'Assignment' clause, the 'Severability' clause, and the forum selection clause."
},
{
"step": "Refer to the Restatement (Second) of Contracts § 317 (1981) to argue against the 'Assignment' clause.",
"details": "This section provides that a contractual right can generally be assigned unless the assignment would materially change the duty of the obligor, increase the burden or risk imposed by the contract, or impair the obligor's chance of obtaining return performance. The EULA's blanket prohibition on assignment could be seen as overly restrictive and not in line with this principle."
},
{
"step": "Use Cal. Civ. Code § 1458 to further argue against the 'Assignment' clause.",
"details": "This California law states that a right arising out of an obligation may be transferred unless the transfer is prohibited by law or the contract. The EULA's restriction on assignment could be challenged as it may not meet the criteria for a lawful prohibition."
},
{
"step": "Refer to the Restatement (Second) of Contracts § 184 (1981) to argue against the 'Severability' clause.",
"details": "This section provides guidance on how to handle invalid provisions in a contract, ensuring that the remaining provisions can still be enforced. However, it also emphasizes that the modification should not alter the original intent of the agreement. The EULA's severability clause could be seen as allowing too much leeway for modification, potentially disadvantaging the accepting party."
},
{
"step": "Use N.Y. Gen. Oblig. Law § 5-1401 to further argue against the 'Severability' clause.",
"details": "This New York law addresses the enforceability of contracts with severability clauses. It can be used to argue that even if a significant portion of the EULA is found to be unlawful, the remaining parts should not be enforced if they still disadvantage the accepting party."
},
{
"step": "Challenge the forum selection clause based on the principle of fairness and convenience.",
"details": "Argue that requiring litigation in Dublin, Ireland, or Santa Clara County, California, imposes an undue burden on the accepting party, especially if they are located far from these jurisdictions. This could be seen as an unfair term under various consumer protection laws."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The CFAA is relevant as it governs the lawful use of software and computer systems, which aligns with the clause's requirement for compliance with applicable laws.",
"issue": "The clause could potentially infringe on the accepting party's rights if it imposes overly broad or vague requirements that are difficult to comply with, leading to unintended violations and legal consequences.",
"law": "18 U.S.C. § 1030",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter47&edition=prelim"
},
{
"notes": "The DMCA is relevant as it addresses the protection of intellectual property rights, which is a key aspect of the clause's requirements.",
"issue": "The clause could infringe on the accepting party's rights by imposing restrictions that are not clearly defined, potentially leading to unintentional breaches of privacy or intellectual property rights.",
"law": "17 U.S.C. § 512",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter5&edition=prelim"
}
],
"state_laws": [
{
"state": "California",
"notes": "The CCPA is directly relevant as it governs the privacy rights of individuals, which is a key aspect of the clause concerning privacy and intellectual property rights.",
"issue": "The clause could potentially infringe on the accepting party's rights if it imposes overly broad or vague requirements that are difficult to comply with, leading to unintended violations of state laws.",
"law": "Cal. Civ. Code § 1798.100 et seq.",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&part=4.&lawCode=CIV&title=1.81.5"
},
{
"state": "New York",
"notes": "The SHIELD Act is relevant as it pertains to the protection of private information, aligning with the clause's requirement for compliance with privacy laws.",
"issue": "The clause could infringe on the accepting party's rights if it fails to clearly define the scope of 'compliance with applicable laws,' leading to potential legal ambiguities and liabilities.",
"law": "N.Y. Gen. Bus. Law § 899-bb",
"url": "https://www.nysenate.gov/legislation/laws/GBS/899-BB"
}
]
}
},
{
"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": {
"federal_laws": [
{
"notes": "The fair use doctrine under 17 U.S.C. § 107 has been interpreted in various cases to allow for reverse engineering in certain contexts, particularly for achieving interoperability.",
"issue": "The restrictions on reverse engineering, decompiling, and creating derivative works may infringe on the accepting party's rights under the fair use doctrine and the right to interoperability as recognized in certain case law.",
"law": "17 U.S.C. § 107",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim"
},
{
"notes": "The first sale doctrine under 17 U.S.C. § 109 has been upheld in various cases to allow the resale of software, provided that no additional copies are made.",
"issue": "The prohibition on copying or reproducing the Software, except as described in the EULA, may conflict with the rights granted under the first sale doctrine.",
"law": "17 U.S.C. § 109",
"url": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim"
}
],
"state_laws": [
{
"state": "California",
"notes": "This law has been used in case law to support the rights of individuals to engage in lawful professions and trades, which can include understanding and improving software.",
"issue": "The clause restricts the accepting party from reverse engineering the Software, which may infringe on their rights to understand and improve upon the software they have legally obtained.",
"law": "Cal. Bus. & Prof. Code § 16600",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=16600"
},
{
"state": "New York",
"notes": "This law has been used in case law to protect consumers from unfair business practices, which can include overly restrictive software licenses.",
"issue": "The clause restricts the accepting party from creating derivative works, which may infringe on their rights to innovate and build upon existing software.",
"law": "N.Y. Gen. Bus. Law § 349",
"url": "https://www.nysenate.gov/legislation/laws/GBS/349"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
{
"right": "Right to Fair Use",
"description": "The restrictions on reverse engineering, decompiling, and creating derivative works may infringe on the accepting party's rights under the fair use doctrine, which allows for certain uses of copyrighted material without permission from the rights holders."
},
{
"right": "Right to Interoperability",
"description": "The prohibition on reverse engineering may conflict with the right to interoperability, which has been recognized in case law as necessary for ensuring that different software systems can work together."
},
{
"right": "Right to Resell Software",
"description": "The prohibition on copying or reproducing the Software, except as described in the EULA, may conflict with the rights granted under the first sale doctrine, which allows the resale of software provided no additional copies are made."
},
{
"right": "Right to Engage in Lawful Professions and Trades",
"description": "The restriction on reverse engineering the Software may infringe on the accepting party's rights to understand and improve upon the software they have legally obtained, which is protected under certain state laws."
},
{
"right": "Right to Innovate",
"description": "The restriction on creating derivative works may infringe on the accepting party's rights to innovate and build upon existing software, which is protected under certain state laws."
},
{
"right": "Right to Privacy",
"description": "The clause requiring compliance with privacy laws may impose overly broad or vague requirements that are difficult to comply with, potentially leading to unintended violations of privacy rights."
},
{
"right": "Right to Clear and Understandable Terms",
"description": "The clause's vague language regarding compliance with applicable laws may lead to legal ambiguities and liabilities, infringing on the accepting party's right to clear and understandable contract terms."
}
]
},
"legal_rights_advicacy": [
{
"step": "Identify the specific rights potentially violated by the clause.",
"details": "Review the clause in question and identify the specific rights that may be infringed upon, such as the right to fair use, the right to interoperability, and the right to resell software."
},
{
"step": "Reference relevant federal laws.",
"details": "Cite federal laws that protect these rights, such as 17 U.S.C. § 107 (fair use doctrine), 17 U.S.C. § 109 (first sale doctrine), and 18 U.S.C. § 1030 (Computer Fraud and Abuse Act). Explain how these laws support the accepting party's rights."
},
{
"step": "Reference relevant state laws.",
"details": "Cite state laws that protect these rights, such as Cal. Bus. & Prof. Code § 16600 (right to engage in lawful professions and trades) and N.Y. Gen. Bus. Law § 349 (protection from unfair business practices). Explain how these laws support the accepting party's rights."
},
{
"step": "Argue for the necessity of clear and understandable terms.",
"details": "Emphasize the importance of clear and understandable contract terms to avoid legal ambiguities and liabilities. Argue that the clause's vague language regarding compliance with applicable laws infringes on the accepting party's right to clear terms."
},
{
"step": "Highlight the potential for unintended violations.",
"details": "Explain how the overly broad or vague requirements of the clause could lead to unintended violations of privacy and intellectual property rights, resulting in legal consequences for the accepting party."
},
{
"step": "Propose modifications to the clause.",
"details": "Suggest specific modifications to the clause to ensure it aligns with the accepting party's rights under federal and state laws. For example, clarify the scope of 'compliance with applicable laws' and provide exceptions for fair use and interoperability."
},
{
"step": "Provide legal precedents.",
"details": "Cite relevant case law that supports the accepting party's rights, such as cases that have upheld the fair use doctrine, the first sale doctrine, and the right to interoperability. Use these precedents to strengthen the argument."
},
{
"step": "Summarize the argument.",
"details": "Summarize the key points of the argument, emphasizing the importance of protecting the accepting party's rights and ensuring that the clause complies with federal and state laws. Highlight the potential legal risks for the offering party if the clause is not modified."
}
]
}
{
"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": {
"federal_laws": [
{
"notes": "The Unconscionability Doctrine is often invoked in cases where there is a significant imbalance in bargaining power between the parties, and one party imposes terms that are excessively one-sided.",
"issue": "The clause limits LinkedIn's liability to an extent that may be considered unreasonable or unconscionable, especially in cases where the accepting party suffers significant damages due to LinkedIn's actions or negligence. This could potentially infringe on the accepting party's right to seek adequate compensation for their losses.",
"law": "U.C.C. § 2-302 (Am. Law Inst. & Unif. Law Comm'n 2020).",
"url": "https://www.law.cornell.edu/ucc"
},
{
"notes": "The Restatement (Second) of Contracts is widely used by courts to interpret and enforce contract terms, and it provides a framework for addressing issues of fairness and equity in contractual relationships.",
"issue": "The clause may infringe on the accepting party's rights by limiting their ability to recover damages for losses that are a direct result of LinkedIn's breach of contract or negligence. This could be seen as an attempt to evade responsibility and deny the accepting party fair compensation.",
"law": "Restatement (Second) of Contracts § 208 (Am. Law Inst. 1981).",
"url": "https://www.ali.org/publications/show/contracts/"
}
],
"state_laws": [
{
"state": "California",
"notes": "This law is relevant as it directly addresses the limitations of liability clauses in contracts, ensuring that such clauses do not absolve parties from liability for their own wrongful acts.",
"issue": "The clause limits LinkedIn's liability for various types of damages, which could potentially infringe on the accepting party's right to seek full compensation for losses incurred due to LinkedIn's actions or negligence.",
"law": "Cal. Civ. Code § 1668",
"url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1668.&lawCode=CIV"
},
{
"state": "Texas",
"notes": "This law is relevant as it addresses the enforceability of limitations on remedies in contracts, ensuring that such limitations are not unconscionable or fail their essential purpose.",
"issue": "The clause could potentially limit the accepting party's ability to claim damages for significant losses that are categorized as indirect or consequential, which might be critical in certain scenarios.",
"law": "Tex. Bus. & Com. Code § 2.719",
"url": "https://statutes.capitol.texas.gov/Docs/BC/htm/BC.2.htm#2.719"
}
]
}
}
],
"legal_rights": {
"rights_potentially_violated": [
"Right to Seek Full Compensation: The clause limits the accepting party's ability to recover full compensation for losses incurred due to LinkedIn's actions or negligence, potentially infringing on their right to be made whole.",
"Right to Fair and Equitable Treatment: The clause may be seen as excessively one-sided and unconscionable, especially given the imbalance in bargaining power between LinkedIn and the accepting party.",
"Right to Legal Recourse: By limiting liability for indirect, incidental, special, consequential, or exemplary damages, the clause may restrict the accepting party's ability to seek legal recourse for significant damages."
]
},
"legal_rights_advicacy": [
{
"step": 1,
"action": "Identify the Unconscionability Doctrine under U.C.C. § 2-302.",
"reasoning": "Argue that the clause is unconscionable because it creates a significant imbalance in the rights and obligations of the parties, favoring LinkedIn excessively. Highlight that the clause limits LinkedIn's liability to an extent that may be considered unreasonable, especially in cases where the accepting party suffers significant damages due to LinkedIn's actions or negligence."
},
{
"step": 2,
"action": "Refer to the Restatement (Second) of Contracts § 208.",
"reasoning": "Use this to argue that the clause may infringe on the accepting party's rights by limiting their ability to recover damages for losses that are a direct result of LinkedIn's breach of contract or negligence. Emphasize that this could be seen as an attempt to evade responsibility and deny the accepting party fair compensation."
},
{
"step": 3,
"action": "Invoke California Civil Code § 1668.",
"reasoning": "Point out that this law ensures that limitations of liability clauses do not absolve parties from liability for their own wrongful acts. Argue that the clause limits LinkedIn's liability for various types of damages, potentially infringing on the accepting party's right to seek full compensation for losses incurred due to LinkedIn's actions or negligence."
},
{
"step": 4,
"action": "Cite Texas Business and Commerce Code § 2.719.",
"reasoning": "Highlight that this law addresses the enforceability of limitations on remedies in contracts, ensuring that such limitations are not unconscionable or fail their essential purpose. Argue that the clause could potentially limit the accepting party's ability to claim damages for significant losses that are categorized as indirect or consequential, which might be critical in certain scenarios."
},
{
"step": 5,
"action": "Present Case Law and Precedents.",
"reasoning": "Provide examples of case law where similar limitations of liability clauses were deemed unenforceable due to their unconscionable nature or failure to provide adequate remedies. This will strengthen the argument by showing judicial trends and interpretations."
},
{
"step": 6,
"action": "Negotiate for Fairer Terms.",
"reasoning": "Use the identified laws and arguments to negotiate with LinkedIn for a more balanced limitation of liability clause. Propose terms that allow for reasonable recovery of damages in cases of LinkedIn's negligence or breach of contract, ensuring that the accepting party's rights are adequately protected."
}
]
}
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