ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Wednesday, February 4, 2009


SnowI really just wanted to post to say that Valparaiso got hit with about two feet of snow, and it is awesome. Our street is outside of the city (yes, we live in the greater metropolitan Valparaiso area!) and so it has not been plowed and is not likely to be plowed any time soon. And so, the image at left pretty much captures what I see when I look out my window.

But, when I went on wikipedia to get the image in question, I found that my use of it is subject to something called the GNU Free Documentation License, the purpose of which is "to make a manual, textbook, or other functional and useful document "free" in the sense of freedom: to assure everyone the effective freedom to copy and redistribute it, with or without modifying it, either commercially or noncommercially. Secondarily, this License preserves for the author and publisher a way to get credit for their work, while not being considered responsible for modifications made by others."

Now, I often use images on this blog that I find on the Wikipedia Commons. I do so because images on Wikipedia Commons may be freely reused without permission. Increasingly, however, I find that images on Wikipedia are now subject to this GNU license, which is fine, except that it's damned hard to know how to comply with it! The GNU license states:

You may copy and distribute the Document in any medium, either commercially or noncommercially, provided that this License, the copyright notices, and the license notice saying this License applies to the Document are reproduced in all copies, and that you add no other conditions whatsoever to those of this License.

Okay, so, for example, with respect to the image I'm using today, how do I reproduce the license when I copy and distribute an image on this blog? Is it enough that I provided a link to the license (as I have done) or am I supposed to cut and paste the license into each blog post that contains an image subject to the license (which would be ridiculous)?

In addition, the license provides the following:

To use this License in a document you have written, include a copy of the License in the document and put the following copyright and license notices just after the title page:

Copyright (c) YEAR YOUR NAME.

Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts, and no Back-Cover Texts.

A copy of the license is included in the section entitled "GNU Free Documentation License".

It seems to me that this "freedom" is more trouble than it's worth.

I do want to give credit where credit is due.

So, thanks, Sean the Spook, for this lovely picture of Long Mynd in Shropshire, taken on February 24, 2005.

It reminds me of home.

[Jeremy Telman]

February 4, 2009 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2009

Enough Already With the Chickens: Let's Talk about "Visitors"

Visitor_growth_graph1The cosmos aligned perfectly: on the very day I taught ambiguity, the New York Law Journal reported a New York County Supreme Court case about ambiguity. And now I can demonstrate the doctrine is not just for the birds.

In WebMD LLC v. RDA International Inc., the parties entered into a January 2007 internet advertising contract, pursuant to which plaintiff guaranteed " . . . 36,000 visitors to WebMD Health Zone and WebMD related condition centers driving to website." In October and December of that same year, the parties again contracted for advertising space; in the October contract, the plaintiff guaranteed that there would be 6,791,727 impressions, and in the December contract, the plaintiff promised 605,311 impressions.

When defendant failed to pay in full the some $450,000+ owed under the advertising contracts, plaintiff sued. The defendant had acknowledged owing money under the contracts, but asserted the affirmative defense that plaintiff had failed to fully perform its end of the bargain:

According to defendant, an "impression" is an internet user who accesses a website once in a 30 minute time frame; that user may be counted as a second "impression" if, after the 30 minutes, he or she accesses the site again. Defendant asserts that, by counting the same user multiple times, plaintiff failed to provide 36,000 "unique" visitors. Defendant's assertions are based on definitions by the Interactive Advertising Bureau, Media Rating Council, and Advertising Research Foundation, promulgated between 2001 and 2004, which defined a "unique visitor" as an internet user who is only counted once, regardless of the number of times he or she accesses a site. Based on these definitions, defendant maintains that plaintiff only performed 70-80 percent of its contractual promises.

Plaintiff moved for summary judgment and to strike defendant's affirmative defenses. The motions turned on whether the word "visitors" as used in the parties' contracts was ambiguous. The court (Ling-Cohan, J.) held that the term was unambiguous:

It is a settled rule that whether a contract is unambiguous is a question of law that may be decided by the court. * * * In the instant case, the contract clauses have been provided. The contract provision, as cited above, guarantees that plaintiff will provide 36,000 visitors to the site, not 36,000 "unique visitors." Defendant does not dispute the total number of visitors to the site as calculated by plaintiff, but complains that the visitors were not "unique visitors."

Although the term "visitors" is not specifically defined in the contract, the lack of a definition does not, in and of itself, create an ambiguity. As stated in Graev v. Graev (46 AD3d 445, 451 [1st Dept 2007]), "extrinsic evidence cannot be used to create an ambiguity in an agreement, but only to resolve an ambiguity. That one party to the agreement may attach a particular, subjective meaning to a term that differs from the term's plain meaning does not render the term ambiguous [internal citations omitted]."

Here, although undefined, the term "visitors" is unambiguous. The definitions advanced by the organizations quoted by defendant refer to "unique visitors," and do not define the term "visitor" to mean "unique visitor." If defendant wished to be guaranteed "unique visitors" to the site, it should have specified such in the agreement.

Even if the term "visitors" were deemed to be ambiguous, its interpretation remains the exclusive function of the court unless the "determination of the intent of the parties depends on the credibility of extrinsic evidence . . . [internal quotation marks and citation omitted]." Village of Hamburg v. American ref-Fuel Company of Niagara, L.P., 284 AD2d 85, 88 (4th Dept 2001). This is especially true where the contract is entered into by sophisticated and counseled business people.

* * *

In the instant matter, defendant is asking the court to reform the terms of the agreement to conform to a definition provided by an organization that is not a party to the agreement, and has not submitted any evidence or argument that, at the time of the execution of the agreement, the parties intended something other than what appears on the face of the contract. This the court cannot do. * * *

The court granted plaintiff's motions.

WebMD LLC v. RDA International Inc., 102830/08, NYLJ 2/2/09 (New York County Supreme Court Jan. 6, 2009)

[Meredith R. Miller - h/t Patricia Sturm]

February 3, 2009 in Recent Cases | Permalink | TrackBack (1)

Business Associations Limerick of the Week: Austin v. Consolidated Edison

Like Lovenheim, Austin is a case in which a corporation refused to distribute a shareholder proposal in advance of an annual shareholder meeting. Consolidated Edison's labor union proposed new rules that would provide employees with more generous pension benefits. In this case, the basis for management's refusal to distribute the proposal was its claim that the proposal was excludable under SEC Rule 14a-8(i)(7) because it related to ordinary business operations. The court stated that the proposal, while audacious, was still mundane and thus was best addressed through the collective bargaining process rather than through a shareholder vote.

Austin v. Consolidated Edison Co.

Finding the audacious mundane,
The court would not entertain
Plaintiffs' inventions
Relating to pensions,
And dismissed the suit as inane.

[Jeremy Telman]

February 3, 2009 in Famous Cases, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2009

New Way to Occupy Your Time While Unemployed: Sue Your Former Employer

UgolinoThe New York Times reports a recent uptick in the number of lawsuits by laid-off workers against their former employers. The report highlights suits by former Lehman Brothers, Eos Airlines and Heller Ehrman employees, who claim they were not given the notice due under the Worker Adjustment and Retraining Notification (WARN) Act, and suits by former Dell and Ethan Allen employees alleging age and sex discrimination. But the report also suggests that we may be facing a perfect storm of employment litigation. The elements of the storm include new protections for employees, coupled with an administration that may be more inclined to enforce laws on the books and an economic environment in which desperate workers are willing to take extreme measures, including litigation.

[Jeremy Telman]

February 2, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)

This Just In: More on Chickens

We're on something of a chicken roll.

I just learned that we, the United States" are "the Saudi Arabia of chicken."

Stephen Colbert recommends that we form an O-Peck on this clip:

I'm not sure how this relates to Frigaliment but perhaps someone can figure it out.

[Jeremy Telman]

February 2, 2009 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)