Courts: Violating a Website’s Terms of Service Is Not a Crime • Hacker News Board

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#21

Post by otakucode » Wed, Jan 10, 2018, 11:51 PM UTC

justinjlynn wrote: post #6

prepend wrote: post #2

This is positive news. It seems like the more liberal approach taken when protocols were written is being challenged more by young users who grew up under more stable rules that accepted terms of service as very strong. When I was growing up you went by what the protocol allowed. If an http response came back you have access, if it prompted for credentials, then you didn’t have access. The mere idea that a web server…

It's not that young people grew up with stable rules. It's that young people grew up under the influence of industrial information warfare tactics and propaganda. As someone that was prevented from distributing Linux at high school because the administrators thought that any copying was piracy (thanks to the Software Publishers Association and the friendly local Microsoft rep), this conditioning to get kids (and less…

I don't think that it warrants a name so grand-sounding as 'industrial information warfare tactics and propaganda'. I don't even believe it was done entirely intentionally. When I was going to school in the 90s, schools were locking down more and more each year. Eventually, that produced Columbine and several other school shootings, intensifying their efforts (they were blind to the fact that they were the cause). Eventually they reached a fairly steady state of today, where learned helplessness is inflicted either before or early in adolescence, resulting in things like a 40% drop in the number of 16 year olds who have a drivers license between 2005 and 2015, many fewer adolescents having jobs during school, etc.

Why try, if you are going to be surveilled and get your hand slapped at the slightest violation, and have every rough spot or sharp corner sanded down off of your personality. If you don't want to get classified as a threat and separated and sent to remediation therapy and special schooling and things like that, that is. In the name of security, the teachers derision for the weird kids was given sharp teeth, eventually perfected. The tunnel vision that develops during schooling, the one that leads kids to kill themselves or each other over simple school problems because they can't even see themselves as human beings with a life outside of the school environment, extends further now, well into college, and perhaps soon far beyond.

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#22

Post by otakucode » Wed, Jan 10, 2018, 11:54 PM UTC

aplorbust wrote: post #8

"... the bounds of criminal law should not be defined by the preferences of website operators. And private companies shouldn't be using criminal laws meant to target malicious actors as tool to enforce their computer use preferences or to interfere with competitors." If a website operator wants to control if a user can access the website, then there are ways to do this without resorting to criminal prosecution. Throu…

I am certain that this ruling will be appealed, and we will hopefully see this case before the Supreme Court (assuming they have the time and desire to hear it.. if they don't, then this ruling will stand). Only then will we really be able to speak with the certainty you display.

When you say "Ultimately, no website can force a user..." I wonder if you are actually considering the use of force there? A police officer or other agent with a firearm raiding the home or place of business of someone with a court order in hand is generally quite effective at compelling behavior, and that is what Oracle is aiming for. Whether there are technical means to make it easy or practical isn't at issue.

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#23

Post by michaelmrose » Wed, Jan 10, 2018, 11:54 PM UTC

mattbgates wrote: post #19

Does this mean it is also reversed? If a person chooses to not acknowledge the website's terms, does this mean a website doesn't have to abide by its own terms and can make up its own rules as it goes along?

The question is nonsense.

If you promise something and fail to deliver on this and some party suffers harm based on your failure you might get sued. This is true both ways.

What you can't do is post a sign outside your business saying everyone coming in must do the macarena and accuse anyone not singing of ex post facto breaking and entering under the concept that they should have read the sign.

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#24

Post by torstenvl » Wed, Jan 10, 2018, 11:54 PM UTC

DrScump wrote: post #13

dragonwriter wrote: post #9

Earlier quoted context omitted.

Strictly speaking, what is legal is up to a judge, and whether the evidence shows that you've done what is legal may be up to either a jury or a judge depending on whether it's a jury or bench trial.

Strictly speaking, what evidence is admissible is up to a judge. In a jury trial, what is legal is up to the jury. Juries can still nullify, as was made clear in the Zárate verdicts.

You are incorrect, sir. The judge decides all questions of law, and the jury may not do so. That is why juries are given jury instructions by the judge. Jury nullification in a criminal case is an oddity, but that is not a decision about the law (and is not binding in future cases), nor is it applicable in the civil context we are discussing.

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#25

Post by otakucode » Wed, Jan 10, 2018, 11:55 PM UTC

tinco wrote: post #5

DrScump wrote: post #4

Note that the decision says that violations are not criminal acts, but that doesn't mean that license violations can't result in civil lawsuits and encumbent financial damages.

If you use the website in a way that they would normally ask money for, like circumventing a paywall, is that something they could claim damages as in missed revenue for? I wonder if this ruling makes it legal to scrape for data processing.

If you paid for the access, sure you could scrape. Now if you want to further distribute that data you scraped you might run into problems depending upon the terms of the license you agreed to when you purchased access...

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#26

Post by bactrian » Wed, Jan 10, 2018, 11:56 PM UTC

Oracle is downright evil in the most corporate way. No one with other options should be a customer or employee. Oracle needs to die with Comcast and the rest.

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#27

Post by danans » Thu, Jan 11, 2018, 12:00 AM UTC

michaelmrose wrote: post #20

danans wrote: post #17

IANAL, but violation of terms of service seems like a breach of contract, not a crime. For that sort of thing there is always the civil court system if the plaintiff feels like their loss due to the violation is high enough to warrant pursuing the legal case. But maybe the actual loss caused by the automated downloads in this case wasn't high enough and they pushed the criminal angle to make some kind of point.

There was no loss. They are attempting to missuse the law in order to provide an oportunity to destroy a competitor because Oracle is run by bad people.

> There was no loss.

I suspect that too. I'm just surprised it got as far as a jury ruling in their favor in a criminal case, instead of being thrown out earlier on it's lack of merit.

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#28

Post by lysp » Thu, Jan 11, 2018, 12:01 AM UTC

danans wrote: post #17

IANAL, but violation of terms of service seems like a breach of contract, not a crime. For that sort of thing there is always the civil court system if the plaintiff feels like their loss due to the violation is high enough to warrant pursuing the legal case. But maybe the actual loss caused by the automated downloads in this case wasn't high enough and they pushed the criminal angle to make some kind of point.

> but violation of terms of service seems like a breach of contract

I agree.

But also, breach of contract can only occur if there is an actual contract. Speaking generally - if I purchase software then a contract would exist (offer/acceptance/money changing hands) and the terms would come into play.

If I was simply a visitor to a website then I think it would be harder to argue a contractual relationship exists.

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#29

Post by Sniffnoy » Thu, Jan 11, 2018, 12:09 AM UTC

saurik wrote: post #18

prepend wrote: post #2

This is positive news. It seems like the more liberal approach taken when protocols were written is being challenged more by young users who grew up under more stable rules that accepted terms of service as very strong. When I was growing up you went by what the protocol allowed. If an http response came back you have access, if it prompted for credentials, then you didn’t have access. The mere idea that a web server…

I continue to be shocked that Twitter convinced an entire generation of software developers that you need to obtain something called an "API key"--which can somehow be refused or even revoked once granted--in order to write a client for their protocol. "Back in my day", we just reverse engineered the official client and used whatever algorithm it used to talk to the server and called the war won :/.

Is this system of "API keys" why Pidgin doesn't handle all these new IM protocols, and why there's no other good old-fashioned multi-protocol clients for them (that I'm aware of)?

Re: Courts: Violating a Website’s Terms of Service Is Not a Crime

#30

Post by adrianratnapala » Thu, Jan 11, 2018, 12:12 AM UTC

AnimalMuppet wrote: post #12

chrisshroba wrote: post #10

Does anybody know how this pertains to data scraping? Like many coders/tinkerers, I've been frustrated that TOS'es often forbid bots from scraping data from many sites. There are lots of ways data can be better visualized or synthesized than is currently done, but terms of service make this impossible (unless you're just doing a small side project you never plan to publish). Does this mean that scraping is acceptable…

This case is explicitly about data scraping. If the site's TOS forbids scraping, but allows access, this decision says "scrape away". Note, however, that this is a Ninth Circuit decision. If you don't live within the bounds of the Ninth Circuit, this decision doesn't apply to you.

No, it doesn't say scrape away. It says the scraping doesn't violate state computer crime statues (and the court has ruled similarly about Federal ones in the past). Oracle could still take actions other than gunning for a criminal prosecution.

A simple action they could have taken was to block the scraper, the EFF post makes it looks like they didn't do this. Presumably they asked for the prosecution in order to deter other scrapers, but they could have done that AND ALSO blocked this scraper.