Artist Behind 'Go The F**k To Sleep' Gives Away Free Illustrated Book On Jury Nullification

Twitter Tries To Move Patent Trial By Saying All Twitter Users Agree To Settle Legal Disputes On Twitter's Home Turf

from the nice-try,-but-no dept

Fri, Jul 1st 2011 4:02pm — Mike Masnick

It's no secret that patent holders suing for infringement prefer certain venues. And, many tech companies based in the Bay Area like to try to get those cases moved to a local court instead. There's been some efforts to move cases to better locations, but thanks to some tricky games, lawyers can frequently keep the cases where they were filed.

Apparently Twitter thought that it might try some tricky lawyers' games of its own to get one case transferred. The company tried arguing that because the patent holder, Dinesh Agarwal, who was suing them was also a Twitter user, it meant he'd agreed to Twitter's terms of service... which state that all lawsuits against the company must be brought in San Francisco. That's pretty clearly a tortured reading of the Terms of Service, because this lawsuit had nothing, whatsoever, to do with Agarwal's use of the service... and the judge didn't buy it, allowing the case to continue in Virginia, where it was filed. As the judge noted, agreeing to this "would potentially foster satellite litigation in every patent case involving a social networking market participant," basically guaranteeing that such lawsuits could only be brought where social networking companies wanted them to be brought.

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Filed Under: jurisdiction, location, patents, terms of service
Companies: twitter

29 Comments

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Capitalist Lion Tamer (profile), 1 Jul 2011 @ 4:12pm

What?

Was East Texas full?
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out_of_the_blue, 1 Jul 2011 @ 4:19pm

"Terms Of Service" are irrelevant.
A website (of this type) is a common law community bulletin board, despite the assertions of web-site operators. If they make it available to the public, to large extent it becomes /public/ property. Don't let the greedy corporatists tell that you agreed to anything: there's no consideration exchanged and NO signed agreement.
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Andrew Norton (profile), 1 Jul 2011 @ 4:22pm

140chars?
Was Twitters change of venue filing less than 140 characters?
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Anonymous Coward, 1 Jul 2011 @ 5:02pm

Inconsistant Law
As the judge noted, agreeing to this "would potentially foster satellite litigation in every patent case involving a social networking market participant," basically guaranteeing that such lawsuits could only be brought where social networking companies wanted them to be brought.

But, then again, that's what they agreed to. Are Terms of Service agreements legally enforceable or not? Or, are they only enforceable on a case-by-case basis as each individual judge sees fit, so that one never knows in advance?
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Anonymous Coward, 1 Jul 2011 @ 5:18pm

4 the cnvnce of the prties&witness in the intrst of jstice @Twitter rspctfly moves 2 xfer case 2 US DistrCrt NO Distr/CA via 28USCsec1404a
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6 (profile), 1 Jul 2011 @ 6:41pm

"basically guaranteeing that such lawsuits could only be brought where social networking companies wanted them to be brought."

And what would be wrong with that?

Not that I'm all for click through EULA's (indeed I think they should simply be banned outright in any form that they might be made to appear). But, if they are going to allow them to exist then I see no issue with twiter or whomever making their customers agree to bring patent cases in their home turf. Indeed, it seems like more companies ought to do this.

It would be a great deterant to forum shopping.
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Anonymous Coward, 1 Jul 2011 @ 6:54pm

Re:
That's funny
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abc gum, 2 Jul 2011 @ 8:02am

Re:
"Was East Texas full?"

Full of something ... very aromatic
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abc gum, 2 Jul 2011 @ 8:10am

Re: Inconsistant Law
Didn't read the article? I'm not surprised.

fta -> "he found that Twitter�s contract regarding where lawsuits must be heard didn�t necessarily apply to patent suits. "

Could it be that the judge found the patent lawsuit was unrelated to the TOS? This must be beyond your comprehension.
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abc gum, 2 Jul 2011 @ 8:12am

Re:
"I see no issue with twiter or whomever making their customers agree to bring patent cases in their home turf. Indeed, it seems like more companies ought to do this. "

Awesome - they should also require your first born.
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Anonymous Coward, 2 Jul 2011 @ 2:01pm

Re: Re: Inconsistant Law
Didn't read the article? I'm not surprised.

Of course I did. Comment went right over your head? I'm not surprised.

Could it be that the judge found the patent lawsuit was unrelated to the TOS? This must be beyond your comprehension.

Which is an inconsistency since the language of the TOS covered all suits (which would cover patent suits as well). This must be beyond *your* comprehension.
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abc gum, 2 Jul 2011 @ 5:01pm

Re: Re: Re: Inconsistant Law
Hate to break it to ya - but just because words are in a TOS and someone uses said service does not mean the user is bound to what ever those words say. For example, if terms are unconscionable they can be deemed unenforceable.

Get a clue.
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Anonymous Coward, 2 Jul 2011 @ 5:50pm

Re: Re: Re: Re: Inconsistant Law
Hate to break it to ya - but just because words are in a TOS and someone uses said service does not mean the user is bound to what ever those words say. For example, if terms are unconscionable they can be deemed unenforceable.

I don't see where anyone said otherwise, either. But that doesn't mean it isn't inconsistent. And if the next judge comes along after the fact and says that this ruling doesn't apply to agreements entered into on the third Tuesday of the month, then so be it. And that would be inconsistent too.

Get a clue.

Maybe you should try actually reading comments before responding to them.
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Anonymous Coward, 2 Jul 2011 @ 6:37pm

Re: Re: Re: Re: Re: Inconsistant Law
"Maybe you should try actually reading comments before responding to them."

You mean like this one?

"But, then again, that's what they agreed to. Are Terms of Service agreements legally enforceable or not? Or, are they only enforceable on a case-by-case basis as each individual judge sees fit, so that one never knows in advance?"
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Anonymous Coward, 2 Jul 2011 @ 8:21pm

Re: Re: Re: Re: Re: Re: Inconsistant Law
Was there a previous law or judicial ruling stating that Terms of Service agreements are unenforceable in regards to patents? Or was this a ruling created after the fact?
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abc gum, 3 Jul 2011 @ 7:24am

Re: Re: Re: Re: Re: Re: Re: Inconsistant Law
"Was there a previous law or judicial ruling stating that Terms of Service agreements are unenforceable in regards to patents? Or was this a ruling created after the fact?"

One can not expect the courts to make unreasonable terms within a TOS or any other conveyance enforceable.
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Anonymous Coward, 3 Jul 2011 @ 10:34am

Re: Re: Re: Re: Re: Re: Re: Re: Inconsistant Law
Alright, then, was there a previous ruling or law saying that it was "unreasonable" for an two parties to come to an agreement to limit the venue for patent lawsuits? Or was this something the judge just came up with?
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abc gum, 3 Jul 2011 @ 10:58am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Inconsistant Law
"Alright, then, was there a previous ruling or law saying that it was "unreasonable" for an two parties to come to an agreement to limit the venue for patent lawsuits? Or was this something the judge just came up with?"

Not sure where you want to go with that, possibly you have the answer. Please enlighten us. The Judge made a decision and you clearly disagree, that is your prerogative.

I fail to see how use of the twitter service has anything to do with patent ownership. What is the motivation for inclusion within the TOS? I suppose in your Bizarro World one could demand anything within the Terms Of Service and expect to get it. How about mandatory arbitration - yeah, lets include that.
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Anonymous Coward, 3 Jul 2011 @ 11:25am

Re: Re: Re: Re: Re: Re: Re: Re: Inconsistant Law
One can not expect the courts to make unreasonable terms within a TOS or any other conveyance enforceable.

If the agreement was intended to cover all suits *except* patent suits, it could have been written to say that. If Agarwal thought the terms were unreasonable, maybe he shouldn't have agreed to them.
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Anonymous Coward, 3 Jul 2011 @ 11:43am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Inconsistant Law
Not sure where you want to go with that, possibly you have the answer. Please enlighten us.

It was a question. You mean you don't know? Then what are you spouting off about?

The Judge made a decision and you clearly disagree, that is your prerogative.

It was a question, one you clearly didn't like being asked. It wasn't in agreement or disagreement.

I suppose in your Bizarro World one could demand anything within the Terms Of Service and expect to get it.

You suppose wrong, and it is truly bizarre for you to suppose such a thing. The Terms of Service agreement was a *voluntary* agreement, no one was forced into it. One of the parties apparently had a change of mind later and found a judge to get them out of it.

How about mandatory arbitration - yeah, lets include that.

For your information, that's a clause in many agreements. I just started a new job and the employer included mandatory arbitration in the job offer. I didn't like it, but I didn't have to take the job either.
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abc gum, 3 Jul 2011 @ 1:21pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Inconsistant Law
"It was a question. You mean you don't know? Then what are you spouting off about?"

I was unaware of the requirement to know all prior to stating an opinion - sorry about that everyone - my bad.

"It was a question, one you clearly didn't like being asked. It wasn't in agreement or disagreement."

You give yourself too much credit. I thought it was an irrelevant question.

"The Terms of Service agreement was a *voluntary* agreement, no one was forced into it. One of the parties apparently had a change of mind later and found a judge to get them out of it."

There are many problems with the concept of a TOS or EULA being considered a contractual agreement. Some of the cases actually make it to court where the terms have been determined to be unenforceable. Why do you have a problem with this?

"I just started a new job and the employer included mandatory arbitration in the job offer. I didn't like it, but I didn't have to take the job either."

Exactly. It sucks that corporations enjoy a high unemployment rate in bad economic times which they helped create. Taking away ones right to their day in court is not acceptable and that is why I used it as an example. There are things one must do to survive, but in a society which claims to be "the best ever" reality disagrees. I find it encouraging that the judicial system still has the wherewithal to make decisions which uphold the rights of the individual. So flame on dude - I think the judge was right. Tell us why you think the ruling was wrong.
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abc gum, 3 Jul 2011 @ 1:25pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Inconsistant Law
I fail to see why a TOS or EULA should be allowed to usurp the discretion of the court system. Perhaps you can elucidate?
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Bruce Burdick, 3 Jul 2011 @ 9:33pm

Read the opinion and Masnick's comment and you will agree
This suit was pursuant to patent laws not Twitter service to Agarwal. First, the plaintiff was VS Technologies, which did not have a Twitter account and was not created until after Agarwal got a Twitter account, so the Judge found that VS Technologies could not have agreed to the TOS. Hard to dispute that. Second, the suit was not about Twitter's service to Agarwal, but rather Twitter's adoption of items covered by the VS Technologies patent. Third, if TOS trumped patent law choice of forum, a patentee suing multiple social networks would generate satellite lawsuits in each network's TOS forum choice, rather than in one multi-defendant case in one jurisdiction before one judge, and judicial efficiency favors one case rather than an unlimited number when the issue is essentially the same. Hard to dispute that logic. Fourth, in this case the balance of convenience appeared to be either equal or favoring non-transfer. That balance is for the Court to determine, not Twitter. Fifth, Agarwal's undisputed testimony was his Twitter account was only obtained in order to gather evidence for the suit, not to use the service. Sixth, the USDC-VA-E has a faster docket (it is one of the famous rocket docket jurisdictions for patent cases), and that was a minor factor favoring non-transfer to USDC-CA-N. Not mentioned was the real reason, which the Judge well knows, that the USDC-VA-E is much more pro-plaintiff than the USDC-CA-N so the plaintiff wants it to stay at the USDC-VA-E and Twitter, the defendant, wants it the hell out of there and into a more anti-patent forum like the USDC-CA-N. If Twitter were the patent owner and VS Technologies the defendant, Twitter would be arguing the other way, namely to keep the case there. All in all, this was a real legal stretch by Twitter, indicating desperation. Expect Twitter to try to settle this one.
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staff, 4 Jul 2011 @ 8:57am

freezes over
"It's no secret that patent holders suing for infringement prefer certain venues"

That's true, unless you'd rather wait until hell freezes over like large multinational infringers!
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Anonymous Coward, 4 Jul 2011 @ 9:54am

Re: Read the opinion and Masnick's comment and you will agree
This suit was pursuant to patent laws not Twitter service to Agarwal. First, the plaintiff was VS Technologies, which did not have a Twitter account and was not created until after Agarwal got a Twitter account, so the Judge found that VS Technologies could not have agreed to the TOS.

As I understand it, VS Technologies is not legally incorporated. Thus, it does not have it's own legal identity, as a corporation does. Rather, it is an alias for Dinesh Agarwal.

Hard to dispute that.

I think I just did.
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Cowardly Anon, 4 Jul 2011 @ 1:52pm

Funny I should read this now. I decided to install Valve's Steam on the weekend, and I found a clause like this one in their Terms of Service. It was the first time I had come across it. (Yes, I read the Terms of Service...it's amazing what the put in those things.)

For reference, it is under section 14 and states: "You agree that any claim asserted in any legal proceeding by you against Valve shall be commenced and maintained exclusively in any state or federal court located in King County, Washington, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts."

So does that mean that such a clause is illegal?
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Anonymous Coward, 4 Jul 2011 @ 4:16pm

Re:
So does that mean that such a clause is illegal?

Who knows? It's all up the whims of the individual judge in the particular case. That's why it's inconsistent. And inconsistent law is bad law.
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abc gum, 5 Jul 2011 @ 8:54am

Re: Re:
"It's all up the whims of the individual judge in the particular case. That's why it's inconsistent. And inconsistent law is bad law."

I look forward to the day when Indentured Servitude becomes part of the everyday Terms Of Service.
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Anonymous Coward, 5 Jul 2011 @ 6:16pm

Re: Re: Re:
I look forward to the day when Indentured Servitude becomes part of the everyday Terms Of Service.

Seen the iTunes terms lately?
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