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Submitted via IRC for FatPhil
Good news out of the Ninth Circuit: the federal court of appeals heeded EFF's advice and rejected an attempt by Oracle to hold a company criminally liable for accessing Oracle's website in a manner it didn't like. The court ruled back in 2012 that merely violating a website's terms of use is not a crime under the federal computer crime statute, the Computer Fraud and Abuse Act. But some companies, like Oracle, turned to state computer crime statutes—in this case, California and Nevada—to enforce their computer use preferences.
This decision shores up the good precedent from 2012 and makes clear—if it wasn't clear already—that violating a corporate computer use policy is not a crime.
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Ninth Circuit Doubles Down: Violating a Website’s Terms of Service Is Not a Crime
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The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
The last time I saw him he was walking down Lover's Lane holding his own hand.
-- Fred Allen
(Score: 0) by Anonymous Coward on Thursday January 11 2018, @09:05PM (30 children)
A user agrees to a contract, and then breaches that contract.
That is definitely grounds for a civil lawsuit.
(Score: 4, Informative) by Arik on Thursday January 11 2018, @09:13PM (10 children)
If laughter is the best medicine, who are the best doctors?
(Score: -1, Troll) by Anonymous Coward on Thursday January 11 2018, @09:21PM (3 children)
If you take that tact, then contract law means nothing; if there is no contract law, then there is no society—there is just "Might makes Right".
Caveat Emptor is the foundation of Civilization.
I never hear you folks arguing against the common notion that "Ignorance of the Law is no excuse, Citizen!" The same applies here; law by contracts is just as important (if not more) than law by legislation.
(Score: 5, Informative) by Arik on Thursday January 11 2018, @10:07PM (2 children)
I disagree. It's the tact of pretending contracts can be unilaterally imposed like this that effectively means contract law means nothing.
It's very important. And it's based on consent. Not unilateral imposition.
If laughter is the best medicine, who are the best doctors?
(Score: 0) by Anonymous Coward on Thursday January 11 2018, @10:11PM (1 child)
We seem to disagree on whether there is imposition; I disagree that there is such a thing.
Anyway, there are a number of comments in here that more or less capture my position, so I'll simply refer the reader to the rest of the discussion.
(Score: 0) by Anonymous Coward on Friday January 12 2018, @01:52AM
Ignorance of the LAW is no excuse. Ignorance of a contract, means there is no contract! Come a little closer, AC, so I can violently imposition you, sans contract! Ah Ha, me mateys! Run up the Skull and Cross-bones! There be booty hereabout!
(Score: 0) by Anonymous Coward on Thursday January 11 2018, @09:26PM (5 children)
What are you talking about? The transaction is thus: The user agrees to the usage contract, and in return gets to use the website.
If you don't like a usage contract, then don't agree to it; don't use that website.
"But... I don't like this." is not a valid argument against these things.
(Score: 1, Touché) by Anonymous Coward on Thursday January 11 2018, @09:41PM
Well, by that argument, does that also apply to any linked code from other sites? You viewed it. Are you now beholden to any TOS from those adware and malware spewing pieces of trash?
(Score: 4, Interesting) by tftp on Thursday January 11 2018, @09:45PM (1 child)
That would require giving access only to the registered users - who during sign-up confirmed the contract in some meaningful way. Every company that has anything to keep private does that. Try to get some datasheets without signing up, or some 3D models... Registration at professional, industrial websites is expected because in return you get information that is not obtainable otherwise, anywhere.
A user of a regular website does not achieve informed consent because he does not read the conditions and does not have to accept the offer. In your own example "The user agrees to the usage contract, and in return gets to use the website" the user can easily not agree to the contract and still use the website. To block the alternative the regular website has to be converted to "registered users only" - and the visitor count will drop to 1% of the previous number because nobody is going to register to just read an article. The attention span of an Internet user is 5 seconds.
(Score: 0) by Anonymous Coward on Thursday January 11 2018, @09:50PM
The only problem is one of enforcement. As someone else noted, a restaurant that gives out free bread shouldn't surprised that some people abuse its resources.
There's nothing inherently non-binding about a Terms of Service; it's just not practical to enforce in the case that you outlined, and part of the government has now explicitly stated that you cannot use its CRIMINAL JUSTICE machinery to enforce it either.
(Score: 0) by Anonymous Coward on Friday January 12 2018, @01:56AM
I do not agree to the terms, and I still use the website. What are you going to do about it? If you don't want me using your website, you should get it the frick off of the goddamned network, because by allowing use of your website by those who explicitly do not agree to your terms, you are agreeing to their terms, that they can use your website in any manner they wish that is technically feasible. Contracts swing both ways, which is why most alt-right libertarians are gay.
(Score: 0) by Anonymous Coward on Friday January 12 2018, @08:30AM
That's all fine on sites that require login.
But on websites that don't require login, the user gets to use the website even though he didn't agree to the contract. And the people running those websites would be really sad if the 99.99% of users who didn't agree to any contract suddenly went away.
(Score: 5, Touché) by Justin Case on Thursday January 11 2018, @09:25PM (15 children)
Terms of Service for this post: by fetching this text from the soylentnews.org web server, or by directing your client software to fetch this text from the soylentnews.org web server, you hereby agree to these Terms of Service:
* You is defined as any Anonymous Coward, and your is defined as referring to anything belonging to any Anonymous Coward.
* You hereby acknowledge receiving consideration in the form of this text, containing valuable educational information, and in exchange You agree to send me all your money.
* You agree in the event of any dispute to try the matter in my court, where I am judge and my decisions are final and cannot be appealed. You further agree to pay all associated court costs, which I will determine.
If You do not agree to these Terms of Service, do not fetch this post or read this text.
Now then, since you read my Terms of Service, and took the indicated action to signal your consent, and received consideration, we have a binding contract. Kindly post your account numbers and passwords, thank you.
(Score: 0) by Anonymous Coward on Thursday January 11 2018, @09:31PM (3 children)
You are like a restaurant that serves free bread; you cannot get angry when a customer eats said bread and then gets up and walks away without buying anything—just like it was the restaurants' choice to send out bread, it was your choice to publish that comment for my consumption.
Now, if I had to click "I Agree" before receiving some portion of your comment, then that's an entirely different matter.
Ultimately, what makes a contract work is whether it can be enforced.
Can you enforce your supposed contract?
What the Courts have said here is that a particular contract is not a matter of criminal law, and thus cannot be enforced by the criminal justice system.
(Score: 2) by vux984 on Thursday January 11 2018, @10:52PM (2 children)
Your not really wrong about the whole internet thing, but you shouldn't assume your free bread is free.
"You are like a restaurant that serves free bread; you cannot get angry when a customer eats said bread and then gets up and walks away without buying anything"
In a lot of places, the free bread is not free. If you touch the basket it, its added to your bill; in some places accepting the basket to your table adds it to your bill. In a lot of such places, the bread is then removed from your bill by placing an order, because the bread is free with the purchase of a meal. In most places, adding it and removing it from your bill is academic; ... unless you decide to leave without ordering.
A lot of restaurants in North America would let you leave without issue if you had to leave for some reason without placing an order (it happens) and its just a cost of doing business and creates good will. But if you started showing up to eat free bread and then leave, you'd rapidly discover its not free anymore.
"just like it was the restaurants' choice to send out bread"
They offered bread, you accepted it. They also offer you drinks...do you assume you can drink them and leave too?
(Score: 1, Insightful) by Anonymous Coward on Thursday January 11 2018, @11:00PM
That is all.
(Score: 0) by Anonymous Coward on Friday January 12 2018, @08:35AM
Why? Just why?
Over here the waiter brings the bread once you have ordered. Problem solved.
(Score: 0) by Anonymous Coward on Thursday January 11 2018, @09:36PM
Bite me
(Score: 3, Informative) by bob_super on Thursday January 11 2018, @09:38PM (8 children)
You cannot bind people by a contract they did not get a chance to review before its application. That's law 101.
You can also get a court to invalidate clearly abusive clauses in contracts between private parties.
(Score: 2) by Justin Case on Thursday January 11 2018, @09:44PM (6 children)
So you'd agree that any AC who hits Reload on this page is certainly bound by the contract?
Anyway, I'm the court (as You agreed) so I'm unlikely to invalidate any of my clauses.
(Score: 5, Funny) by bob_super on Thursday January 11 2018, @09:51PM
Last time I went around slapping stickers on luxury cars that said "by reading this, you agree to give me this car", the judge told me that your legal opinion was wasn't even worth the paper it didn't get printed on.
(Score: 0) by Anonymous Coward on Thursday January 11 2018, @09:52PM (3 children)
So, no.
Try again.
(Score: 2) by Justin Case on Thursday January 11 2018, @10:30PM (2 children)
Reload is an "interaction" with the page containing (among other things) my stuff.
(Score: 1, Informative) by Anonymous Coward on Thursday January 11 2018, @10:48PM (1 child)
It doesn't matter what your website does.
(Score: 3, Touché) by Justin Case on Thursday January 11 2018, @11:06PM
Yeah, that's the point I'm trying to illustrate: it doesn't matter how many lawyer-words you pile on a website saying "you agree if you do this", it is still possible the visitor didn't agree.
When you hit reload to interact with your local software, you invoked this clause: "by directing your client software to fetch this text". Your local software then conveyed your interaction to the website; your agent, at your direction and acting on your behalf, interacted with the page containing my Terms of Service.
You can't just unilaterally declare "by interacting" (or by any other thing) "you agree", because I do not agree with that declaration, therefore I don't agree that by doing $WHATEVER I became bound by your words.
(Score: 0) by Anonymous Coward on Friday January 12 2018, @02:18PM
You, however, have no power to enforce anything. So you would have to take your case to a real court to get any enforcement done. I doubt any judge would recognise the validity of any judgements made by your court, therefore your court is pointless.
(Score: 0) by Anonymous Coward on Friday January 12 2018, @12:36AM
The bigger problem is that you have no practical way to talk to anyone and negotiate the terms of the 'contract'; it's all or nothing.
(Score: 2) by requerdanos on Friday January 12 2018, @02:12PM
For the dense of sense, an explanation: This is sarcasm to illustrate a salient point. If you are proposing some argument along the lines of "there is a contract," you are not only completely wrong, but this absurd example is a natural extension of your complete wrongness.
You can't simply say "If you do what you were doing anyway, I unilaterally force on you some terms." Fortunately, neither the universe nor criminal nor civil law work that way. It would be stupid if they did.
(Score: 2) by crafoo on Friday January 12 2018, @12:16AM
No meeting of the minds. No reasonable consideration for the benefits/rights you are supposedly giving up. No mechanism to amend clauses you do not agree with.
No sir. No, there is not a valid contract in place.
(Score: 3, Insightful) by ledow on Friday January 12 2018, @01:22PM (1 child)
A contract and a licence / usage agreement are very different things.
Though one may include a clause which requires adherence to the other, they are entirely different documents, with different requirements and penalties.
Everything from "you hereby agree to this contract if you park in this car park" to shrink-wrap EULAs have been thrown out of courts worldwide for such things, more precisely: not being a contract.
Additionally, a contract has to be fair, have informed, mutual consent and (legalese ahead) be "a meeting of minds" (i.e. something you both reasonably agree to where you both move the same kind of distance towards compromise for).
You can't just draft some nonsense, stick it on a website that's completely open, and then pretend it's enforceable.
Certainly not if, like the shrink-wrap EULAs, you can only find those terms out by accessing the website, running the software, tearing open the box etc. and then you're immediately bound by them (i.e. some kind of mystical psychic ability is necessary to "consent in an informed manner" to them).
Put what you don't want seen behind a login wall, make people agree contracts for supplying that login. Shut off those logins if they cheat the contract.
(Score: 2) by requerdanos on Friday January 12 2018, @02:25PM
This is a clear, succinct statement of this entire issue, using simple, easy-to-understand words and phrases. Well done.