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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

#71

Post by jahewson »

turc1656 wrote: post #65

"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 br…

It's not a contract, it's a license. A license grants you rights to something which is exclusively someone else's and that by default you have no rights to. But agreed that violation is not a crime, see my reply to @holtalanm below.

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

#72

Post by cgriswald »

roywiggins wrote: post #50
08-15 wrote: post #18

Earlier quoted context omitted.

I wonder if placing a cookie on my computer without prior written consent constitutes "unauthorized access". Class action anyone?

It's your own browser that interprets the header, saves the cookie, and passes it back to sites you visit. Passing a "here's a cookie" header to your machine doesn't, on its own, do anything. Your browser has to actively parse and store it.

By the same token, my sending an HTTP request to a server doesn't, on its own, do anything. Their server has to actively parse the request and send data.

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

#73

Post by appleflaxen »

jahewson wrote: post #70
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…

why do you need a license to use something that is posted and publically accessible? A license makes sense for a copyrighted work that you are copying, but for a web service it's less clear.

If I had a physical analog of facebook (a bunch of photos, a travel journal, and a list of my friends) and left it on a table, then do you need a license to pick it up and review it? No. So why do you need one if I do the same thing as a web site?

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

#74

Post by maxerickson »

derefr wrote: post #66
maxerickson wrote: post #20

Earlier quoted context omitted.

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?

I would call that enforcement of a term of the service.

When I said arbitrary terms of service can't be enforced, I meant that the site owner won't have good luck trying to obligate users to do things (their typical response to a problem with the user will be limited to withholding access from the service). I wasn't very clear.

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

#75

Post by bonyt »

turc1656 wrote: post #65

"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 br…

Actually, breaking an NDA might be theft of trade secrets, which in certain cases may be prosecuted as a crime. See, e.g., 18 U.S.C. § 1832[1].

(But, agreed that a ToS violation shouldn't ever be a crime by itself - that reading of the CFAA would give, for example, website operators the power to write criminal law).

[1]: https://www.law.cornell.edu/uscode/text/18/1832

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

#76

Post by turc1656 »

jahewson wrote: post #70
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…

"ToS is not a contract, it's a license."

I'm not sure that's correct, but it could be. It was my understanding it was a contract. That's why you have to agree to it - you are providing your consent and acknowledgement that you have read the terms and agree to abide by them.

If it was a license, they could simply grant it to you without requiring your consent. For example - I can buy a license for some shareware/trialware software by just sending them money and getting the license key in my email. Then when I go to use the software, it may ask for me to agree to the terms of service so that there is a formal agreement on the allowed uses of the software.

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

#77

Post by salted-fry »

turc1656 wrote: post #65

"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 br…

My understanding is that, under the CFAA, any unauthorized access to commercial servers is a felony (more-or-less; there are some requirements here, but as I recall they're so broad that they basically always apply).

The theory here is that, after breaking the TOS, if you continue to use the service then that use is unauthorized and therefore felonious.

As the EFF notes, previous judges have refused to rule it this way, basically on the basis of "that's insane, even if it is what the law says".

Edit: for reference, the relevant legal bits are here, in section (a.2.C), with relevant definitions in (e.2.B): https://www.law.cornell.edu/uscode/text/18/1030

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

#78

Post by [deleted] »

turc1656 wrote: post #65

"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 br…

[deleted]

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

#79

Post by jahewson »

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

Unfortunately for your hypothetical website owner, this is extortion, which is a real crime.

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

#80

Post by dragonwriter »

jahewson wrote: post #71
turc1656 wrote: post #65

"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 br…

It's not a contract, it's a license. A license grants you rights to something which is exclusively someone else's and that by default you have no rights to. But agreed that violation is not a crime, see my reply to @holtalanm below.

> It's not a contract, it's a license.

License and contract are overlapping, not mutually exclusive (a license can either be a gratuitous license or a license contract.)

Website ToS may be (a component of) either sort of license arrangement. (On a site where your access is undisputably part of an exchange-for-value, like a pay site, you have a contract relationship and the ToS are almost certainly a part of that contract, probably by reference.)

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