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Violating Terms of Use Isn’t a Crime, EFF Tells Court

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Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#61

Post by nickff »

rplst8 wrote: post #49

The fact that this has to even be argued is appalling. The erosion of the difference between a tort and crime over the last few decades is very concerning. I think a lot of it started with the changing of copyright law into criminal law.

This is part of a larger situation where everything is becoming criminal law. The Yates and Bond cases illustrated the breadth of the government's use of laws to punish undesirable behaviours, and tens of thousands of regulations have criminal penalties with no mens rea requirement. The government is even using criminal statutes against corporations (not the officers or employees), which doesn't make any sense.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#62

Post by frenchman_in_ny »

codedokode wrote: post #41

Isn't it nice if ToS is legally binding? 1. Make a website and write somewhere in the middle of ToS that visitor must pay $1000 (for example) for every page viewed or for every second spent on a site 2. Persuade him to press "I have read and agree to the ToS" and to stay as long as possible 3. Send a bill

Something (tongue-in-cheek) like this actually already happened [0], where users granted the website their immortal soul.

[0] http://www.out-law.com/page-10929

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#63

Post by acbabis »

nickff wrote: post #61
rplst8 wrote: post #49

The fact that this has to even be argued is appalling. The erosion of the difference between a tort and crime over the last few decades is very concerning. I think a lot of it started with the changing of copyright law into criminal law.

This is part of a larger situation where everything is becoming criminal law. The Yates and Bond cases illustrated the breadth of the government's use of laws to punish undesirable behaviours, and tens of thousands of regulations have criminal penalties with no mens rea requirement. The government is even using criminal statutes against corporations (not the officers or employees), which doesn't make any sense.

In a sense, holding corporations criminally liable is better. The fact that a corporation can't go to prison almost balances-out the lack of mens rea requirement.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#64

Post by petee »

gregmac wrote: post #46
petee wrote: post #36

Earlier quoted context omitted.

The only mentions I can find refer to "support materials" for assisting clients - That could broadly mean everything from documentation to firmware (which they hold on to tightly with cold, dead hands). Rimini's website seems to suggest they were probably accessing everything. The fact that they were making money off it - and ignored a request to stop - is probably the main difference between this and going after ope…

Shouldn't that be an issue of copyright then?

Supposedly they had a contract for support purposes; but whether Oracle intended for wholesale copying and redistribution (if that is even what happened,) is an exercise for contract nitpicking - obviously this is all speculation [[ stares longingly into the vacuum that was Groklaw... ]]

It could have come down to simply an aggressive/abusive crawler affecting other customers?

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#65

Post by turc1656 »

"But last year, a federal district court in Nevada found a defendant guilty under both the California and Nevada state computer crime statutes for nothing more than that—violating Oracle’s website’s terms of use."

That's insane. The terms of service is essentially a contract that you are agreeing to to use the website/software/service. Failure to adhere to it is a breach of contract, not a violation of law.

If you break an NDA, for example, you don't wind up in jail or have a criminal history. The other party takes you to court to enforce the penalty listed out in the contract for the breach.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#66

Post by derefr »

maxerickson wrote: post #20
cyborgx7 wrote: post #19

Earlier quoted context omitted.

That's a great perspective. Breach of contract would be the upper bound. I don't think ToS should be able to be enforced either because it is unreasonable in today's society to assume checking that box in a sign-up process is actually giving informed consent to the terms for the wast majority of people. But even if it was, worst case it's a breach of contract.

I don't think ToS should be able to be enforced either So how to deal with abusive users then? Hand wave and say it is okay to block them for certain actions that are not terms of service? And of course arbitrary terms of service already can't be enforced.

Why would it not be okay to just ban people from your service "because you feel like it"? Given that you usually don't have any info on them which can be used as the basis of discrimination (and thereby sued over) what's left to worry about?

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#68

Post by Tepix »

vog wrote: post #38

Here in Germany the law states that ToS are only applicable if they contain "no surprising terms". Which is really nice! Although this doesn't give you permission for everything, it protects you from any "cleverness" of a site's operator. It ensures that indeed almost nobody needs to read ToS. Even lawyers tell you this.

No, what you mean are "AGB" (terms and conditions) that govern contractual relations between companies and their customers. They are part of all contracts.

The terms of service ("Nutzungsbedigungen") that Oracle posts on their website that dictate how to use and access their website are invalid in Germany as well.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#69

Post by rocqua »

wtetzner wrote: post #51
xyzzy4 wrote: post #40

Earlier quoted context omitted.

It violates the Facebook ToS to have an account with a name that doesn't match your ID.

Right, but how could anyone prove that you are the one who created the fake account?

Face recognition could also work.

Note that this is rather hypothetical.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#70

Post by jahewson »

holtalanm wrote: post #34

Just my opinion, but I think ToS were originally in place to define how a user _should_ use the site, and how the site operators could act in response to violation. I don't think they should be held as even a contract, much less criminal law. Truthfully, they are really only there to protect the company by outlining to the user what might get them banned from the site and so on. Oracle is overstepping its authority h…

ToS is not a contract, it's a license. By default you don't get a free licence to access and copy others' work, and so one has to be granted.

Much in the same way that you can't start using someone else's land without their permission and you don't get to say "I never knew" or "I never agreed not to use the land". By default, you are not allowed to and must have that right granted to you and you are expected to know that.

Should an (otherwise non-criminal) violation of a software license be treated as a criminal offence by the courts just because it involved a computer? Hell no. Private citizens do not get to invent criminal law themselves and the EFF should fight this hard but not for the reasons you give.

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