>Basically, all damage claims are null because QVC & Resultly never entered into a mutual agreement. You can write whatever the fuck you want in your ToS but it's not law binding.
I'm pretty sure that's what I said re: the ToS? That's only one element of the case (breach of contract). You are correct that in this case, browsewrap was not considered applicable. There have been a few other cases where it wasn't too, as in Nguyen v. Barnes & Noble, Inc., but there have been cases where it was, as in Hubbert v. Dell Corp.. Also note that most cases re: browsewrap do not challenge the viability of automatically entering an agreement by clicking around the site, but rather argue that the notification was simply not prominent enough. It could be worked around by moving the notice into a more prominent location on the page.
The other element is CFAA, and referring to the wide-open robots.txt helped Resultly establish that they were attempting to act in good faith and were not maliciously damaging QVC's systems and not exceeding authorized access to the computer system.
>Please do not cite legal resources and grossly twist realities to spread FUD. If you don't want to be web scraped, simply do not put it online.
I'm not trying to spread FUD, I'm just trying to make it clear that the legal situation is precarious. Google has clearly shown that if you are able to build your coffers and reputation faster than you can incur lawsuits, you can win on this. In fact, lots of big companies begin that way, and become big companies merely because they were lucky enough to get big enough to stand up for themselves before the legal threats started coming in the door.
It's understood that you'll be scraped if you put it online. That doesn't mean scraping is legal.
You may be confused here -- I'm not a publisher trying to stop people from doing this. I'm an entrepreneur whose business depended on scraping data from a specific source. That business got destroyed when they chose to dispatch their law firm against us.
The point of repeatedly discussing this on HN is to make the legal situation clear so that people work to change it, and to make sure people who are going into similar ventures are informed about the legal risks associated with them.
As I said on another post, I am not a lawyer, and this is according to my layman's understanding. No one should misinterpret my posts as legal advice. I'm not going to copy and paste this disclaimer into every post I make because it should be implicit, and a few IANAL disclaimers is plenty.