Re: Arbitrate Infringement?

On 10.10.97, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Thu, 9 Oct 1997, Michael Bradley <michael[_at_]vision-soft.com> wrote:
> >
> > Given an ordinary arbitration clause ("all disputes will be
> > arbitrated"), can a copyright infringement complaint be arbitrated,
> > or must it go the federal court?
>
> I'm by no means an expert in alternative dispute resolution, but my
> understanding is that the Federal Arbitration Act would compel the
> arbitration. I believe that 9 USC 2 and 4 are the relevant sections
> here. Anyone with more ADR background want to check me on this?

To be enforceable, an agreement to arbitrate must

(1) be an agreement {compare Gateway 2000, Inc. v. Hill (7th Cir. 1997), cert. denied, for just how some courts will create an "agreement" out of nowhere}

(2) include the dispute at issue within the scope of the agreement {a surprisingly large stumbling block, even for an "all disputes will be arbitrated" clause}

(3) not be procured by fraud {circuit split in process--the 7th Circuit in Gateway 2000 held that a fraudulent scheme that has an agreement to arbitrate both as an integral part of covering up the fraud and that was made into an "agreement" by independent deceptive conduct is fraud in the underlying agreement, and enforceable; the 9th and 11th Circuits have arguably held otherwise}

IOW, a shrink-wrap arbitration agreement is enforceable.

################################################################
C.E. Petit	#	Writing is the only profession where no
cep[_at_]flash.net	#	one considers you ridiculous if you earn
		#	no money. -- Jules Renard
################################################################