By using this site you agree and understand that the HTML code, look, feel, content, company name, logo, text, and any likeness or derivative of such content is the sole property of Inventor-Link LLC and may not be used in any manner without the expressed written permission of Inventor-Link LLC. Furthermore, we strictly prohibit any links and or other unauthorized references to our web site without our permission.
With these terms, Inventor-link purports to prohibit visitors to the site from using the company's name, linking to the site, or even "refer[ring]" to it without permission. Although the enforceability of these terms is extremely dubious, the company is nevertheless invoking them in an attempt to stop criticism of the company that appears on InventorEd.org, a website that provides information about invention promotion businesses and scams.
Inventor-link is represented by Dozier Internet Law -- the same law firm that threatened to sue for copyright infringement if one of its demand letters were posted on the Internet. Once again, Dozier sent a strongly worded demand letter identifying a bunch of statements that it alleged to be defamatory, most of which appear to be statements of opinion. The letter goes on to invoke the website's user agreement:
You have not received permission to use text from our client’s website, and yet you have republished the following text: “Official Site of Inventor-Link LLC - Your Link to Success for Your... We know how to get your idea from a rough sketch to a finished product in the marketplace. If your idea has what it takes, we can help you get the results you want. ...www.inventor-link.com” You have associated your disparaging remarks with bona fide text from our client’s website with the purpose of harming our client’s business and diverting actual and potential customers. By using legitimate text that rightfully belongs to our client you are in violation of its website User Agreement.
Presumably, the author realizes that copying such a small amount of text for purposes of criticism is a pretty obvious case of fair use and could not support a claim for copyright infringement. But, by framing the issue as one of contract law, Direct-link's lawyer is able to assert that all use of its website, fair or otherwise, is prohibited.
Dozier apparently believes in the enforceability of this kind of agreement, because the firm's own website includes similar terms. The firm's "User Agreement" prohibits linking to its website, using the firm's name "in any manner" without permission (the license specifically provides that even clients cannot say they are represented by the firm without asking), or making "any copies of any part of this website in any way since we do not want anyone copying us." These terms would appear to prevent even criticizing the terms themselves, as this post does, by linking to and quoting from them. And, very strangely, the terms prohibit even looking at the website's HTML code:
We also own all of the code, including the HTML code, and all content. As you may know, you can view the HTML code with a standard browser. We do not permit you to view such code since we consider it to be our intellectual property protected by the copyright laws. You are therefore not authorized to do so.
Inventor-link's and Dozier's "User Agreements" are known as "browse-wrap" agreements, a derivation of the "shrinkwrap" licensing terms that appear inside packaged software. Browse-wrap agreements are the legalese contained in a website's terms of use, usually buried behind a link on a company's home page. The theory behind these agreements is that, just by reading a website, a consumer becomes bound by the company's contractual terms. These contracts often include forum-selection or arbitration clauses that visitors to the site have never read.
Depending on the circumstances of the case, browse-wrap agreements may or may not be enforceable. Where a company has included a provision prohibiting fair use for purposes of criticism, however, it is hard to see how any court would enforce the agreement. Readers of a site have little opportunity to review and agree to such terms, and a reasonable consumer who had reviewed the terms would be unlikely to agree to them.
Nevertheless, terms of use like these are commonly used by companies. AT&T was recently subjected to a round of harsh commentary on the Internet when it amended its terms of service to provide that it could terminate customers' accounts for conduct that "tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries." After a widespread backlash in the blogosphere, the company claimed that it would not use the clause to against critics, and eventually removed the offending terms altogether. And in 2002, the New York Attorney General filed suit against McAfee, the maker of anti-virus software, for including terms in its software license agreements that prohibited "product reviews" or "benchmark tests." The lawsuit claimed that the terms constituted a deceptive act or practice under New York law, and a court eventually enjoined further use of the provisions.
No matter how unlikely these kinds of terms are to be enforced, however, they are often successful in accomplishing their intended result. Consumers who receive threats of litigation over purportedly binding contractual terms are often more likely to shut up than to bear the expense of retaining an attorney and defending their rights.
