Court: Violating T.O.S Is Not a Crime, But Bypassing Technical Barriers Might Be
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eff.org
From TFA: "We welcome the court's rejection of terms of service violations as triggers for criminal liability, but will continue to work to demonstrate to courts that not all technological measures are created equal. If the measure seeks to control access to or use of data, then evasion of it is almost certainly criminal. But if the restriction merely seeks to impose owner preferences or terms of service on otherwise authorized users, bypassing it should not be a crime."
It's not the same as signing a contact. But even a contract can be invalidated if a court holds it's unconscionable.
Would you care to explain how you can defend breaking a TOS when you have a choice on whether to sign it or not?
The problem with a TOS is that it's unilateral - I get no chance to negotiate it. In my mind that makes it invalid. Just because the website wants it to be valid doesn't mean it actually is.
But the bigger problem is that I did not agree to it. The website tries to impose it on me.
So where do those terms come from? Rationally, one might expect the website to spell out what they expect from you and under what conditions their services are provided. If you don't like those terms, don't use the service.
It seems like you're arguing that you should get to determine under what terms the services are offered, or perhaps alternatively that services offered should never have any terms attached whatsoever; both of those positions seem pretty indefensible to me.
Just because you don't get a chance to negotiate terms doesn't make them invalid. It's a take-it-or-leave it offer, and you always have the right to leave it. When a restaurant gives you a bill, do you pay less than the amount just because you didn't get to negotiate the price? Do you walk into a restaurant shirtless that explicitly asks you not to do that? Of course not: your ordering the item indicated your willingness to pay the associated charge, and likewise if you don't want to abide by their rules around appropriate dress, you just don't go in.
You don't get to make up your own rules and then apply them to someone else's services.
It's a different question if the TOS are deliberately obscured such that you don't actually know what you're agreeing to, but the argument that just because you can't negotiate the TOS they're somehow invalid and you're thus justified in still using the service in violation of them is absurd.
How is a website any different?
> So where do those terms come from?
State law. That's all. The website can not dictate any terms whatsoever.
To your specific points:
A restaurant is private property - they can ask me to leave if I don't wear a shirt, but they can NOT compel me to actually wear the shirt. They can't fine me for going there without a shirt, they can't do anything at all, except ask me to leave.
If I buy food from a restaurant, that's a purchase and not a contact, and it uses the various state laws that govern that. But the restaurant can NOT add extra conditions. If a restaurant puts up a sign that said "by buying food here you agree to ...." - that sign is meaningless, and has no validity.
A purchase order requires the signature of the buyer. Merely stating a term and saying "by doing ...." is meaningless.
Those terms you find on the back of a receipt sometimes? Meaningless. They can say what the store will do, and under what conditions, but they can do nothing whatsoever to the purchaser that state law does not provide.
I'm not saying a website should be able to sue you or file criminal complaints if you violate a TOS; I'm just saying that they do have the right to expect you to abide by them if you choose to use the site. They should be able to behave exactly as a restaurant does: kick you out if you violate them, and file criminal complaints only if you actually do something criminal (cause damage, steal stuff, abuse staff, etc.).
Whether or not a TOS is criminally enforceable is a long ways away from your argument, which I interpreted as essentially saying that breaking/ignoring a TOS isn't any sort of ethical violation because it's not a countersigned negotiated contract.
And even if it was, a TOS would be invalid on private property.
You can SAY don't mess up flowers, but you can't endorse it. The only rights you have are those given by state law, your TOS is nothing.
Suppose you put up a sign that says: "If you mess up the flowers you must replant them."
Those words are meaningless. You simply do not have the power to do that. You can sue for damages, but only because state law says so. What you wrote on the sign is meaningless.
A TOS is totally invalid, and you can ignore it entirely. Both on a website, and on private property. The only rights you have are those given to you by state law.
Unless you sign a contact of course. But you can't create a contract merely because someone came to your house, or to your website.
EDIT: Although it's unclear whether a contract was really entered into. Real contracts have signatures to indicate both parties know and agree to what's contained. That's often not the case in web services.
Where, and how can a website claim that an "agree" button is legally enough? Or perhaps, the TOS is just nonexistent(ala 404). Or, what are these "bypassing technical barriers"? Does that count reading the URL and changing it? Greasemonkey? Filtering/data modifying router? Post injection?
This suggesting is creating more confusion than it solves.
Under what "law" can you even load the site to begin with? That's right, they accepted a connection. It's akin to knocking on someones door, and they let you in. The website could always pop back "connection denied", 403, or just not answering at all.
At most it's a gentlemens agreement, or in the class of "windshields not our responsibility for our uncovered load".
Aside that, we know certain public AP's modify content to add theirs instead (panera bread advert munges). Aside ssl'ing everything, how can they even be sure we agreed to the same TOS, let alone agree at all?