MacKinnon

I. BACKGROUND

A. IMVU

IMVU develops and operates an Internet-based entertainment service known as the instant messaging virtual universe. Users access the instant messaging virtual universe by way of the IMVU application, a software application available for download on the IMVU Web site. To download the IMVU application, users must create an IMVU account by providing certain information and clicking the “CREATE IMVU ACCOUNT” button. Immediately below the “CREATE IMVU ACCOUNT” button is small print stating “[b]y clicking Create IMVU Account you are indicating that you have read and agree to the Terms of Service Agreement and Privacy Policy.” A hyperlink to the Terms of Service Agreement and Privacy Policy also appears. IMVU users create customized virtual characters, or avatars, which can interact with other users’ avatars. Users can purchase products for their avatars--including clothing, furniture, and pets--using “Credits,” which can in turn be purchased using real money. Users also can purchase audio products, including so-called “trigger music”-- audio clips or songs users play by typing the appropriate trigger. Audio products are created by IMVU users, who submit…