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It is common knowledge among lawyers that online platforms have broad leeway to enforce arbitration agreements in their online ToS. But one wrinkle that is perhaps not as well known is that many companies selectively draft their online contracts to compel arbitration when they prefer it, while still allowing them to avail themselves of traditional courts it suits their preferences. If you know the types of claims that your users will likely have against you, and you know the types of claims that you will likely have against your users and other third parties, it is possible to draft online…

Online contracts are a farce. Everyone knows they’re a farce. But every year, more areas of the law are consumed by the law of online contracts. — In 2011, Marc Andreesen wrote a landmark blog post called, “Why software is eating the world.” It was so prescient that the phrase is now embedded in the Silicon Valley lexicon. He predicted that software would soon revolutionize many industries, even those that we do not perceive as “tech,” by eating much of the value chain in sectors that provide traditional brick-and-mortar services.  Airbnb ate much of the hotel industry. It did not…

The short answer is: That’s not what they were designed for. The longer answer is that you shouldn’t use a standard SAFE note to raise capital with an LLC, because it specifically contemplates a type of investment that LLCs cannot do. Namely, a priced, preferred stock round with a venture-capital firm. Most venture capital firms are legally prohibited from investing in pass-through entities, which includes almost all LLCs (unless you’re the very rare LLC that is taxed as a C-corp). It is at least theoretically possible to modify a SAFE note to contemplate a priced-preferred ownership round with a person…

One of the more common refrains I hear from clients is the phrase “I want to limit my liability to the maximum extent possible.” And I think most lawyers are thrilled when they hear this, because it means the client is risk averse and wants legal services. But the expression always gives me pause. I get it. No one wants to get sued. But the business world is competitive, cutthroat, and outsized profits are not easy to find. Outsized profits require some risk. I can draft you an Abrams tank of a contract. And if you are a large, enterprise…

Time to catch up on cross referencing some of my more recent writing and blog posts on other sites. Last fall, I wrote two big pieces on Eric Goldman’s Law and Technology Blog. The first breaks down the key summary judgment ruling in the hiQ Labs, Inc. v. LinkedIn Corp. case. The second breaks down some of the more popular misconceptions about the law related to web scraping. Last month, I wrote about an interesting case out of South Carolina that addresses whether government restrictions on web scraping implicate the First Amendment. The short answer is that it does! Finally,…

One of the main reasons I first became interested in the law of web scraping was because of how hard it was to find reliable information about it. Years ago, I had a client with a big web-scraping project, and they asked me to research whether what they were planning on doing was legal or not. And in my research, I kept uncovering article after article about the laws related to web scraping that was absolute nonsense.Only by sticking with academic research and the case law was I able to find anything that I could trust.As I started digging deeper,…