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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 fi

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.

tinco 9y ago
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.
- DrScump 9y ago
  What's "legal" would be up to a jury. Note, however, that a deep pocket could bankrupt you simply through legal mechansims such as discovery.
  - dragonwriter 9y ago
    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.
    - DrScump 9y ago
      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.
      - dragonwriter 9y ago
        Strictly speaking, even when the jury nullifies, it does so by answering questions of fact, not law (even though some or all of the jurors may be substituting judgements of law for fact.) And, even more strictly speaking, in a civil case (which this subthread is addressing) it's all up to the judge anyway, even in a jury trial, since (unlike in a criminal case, where this can only happen to the benefit of the defendant, as a judgement of acquittal), a decision for either party may be entered, after the jury verdict, as a judgement as a matter of law (aka judgement notwithstanding the verdict.) This makes nullification essentially a dead issue in civil trials.
      - torstenvl 9y ago
        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.
- otakucode 9y ago
  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...
- danans 9y ago
  Sure, but they are only likely to pursue civil action if competitors scraped in a manner that resulted in meaningful losses, i.e by scraping a competitor's data in violation of the TOS and then selling or representing it as your own. A few people circumventing paywalls isn't going to register on the legal radar.
dragonwriter 9y ago
> Note that the decision says that violations are not criminal acts Actually, it says that they don't violate particular California and Nevada state analogs of the federal CFAA; this was, in fact, a civil case under those laws, not a criminal case, though those laws also support criminal prosecution.
Stranger43 9y ago
In order for a license violation to to exist a valid contract need to exist. and for a contract to be valid both contracting parties must enter a contract on a informed and non coercive basis an bar practically no click wrap EULA/TOS page meats. With out a valid two sided contract any website operator wanting to sue a user for misuse will have to resort to whatever laws is actually on the books.

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.

tinco 9y ago

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.

DrScump 9y ago
What's "legal" would be up to a jury. Note, however, that a deep pocket could bankrupt you simply through legal mechansims such as discovery.
- dragonwriter 9y ago
  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.
  - DrScump 9y ago
    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.
    - dragonwriter 9y ago
      Strictly speaking, even when the jury nullifies, it does so by answering questions of fact, not law (even though some or all of the jurors may be substituting judgements of law for fact.) And, even more strictly speaking, in a civil case (which this subthread is addressing) it's all up to the judge anyway, even in a jury trial, since (unlike in a criminal case, where this can only happen to the benefit of the defendant, as a judgement of acquittal), a decision for either party may be entered, after the jury verdict, as a judgement as a matter of law (aka judgement notwithstanding the verdict.) This makes nullification essentially a dead issue in civil trials.
    - torstenvl 9y ago
      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.
otakucode 9y ago
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...
danans 9y ago
Sure, but they are only likely to pursue civil action if competitors scraped in a manner that resulted in meaningful losses, i.e by scraping a competitor's data in violation of the TOS and then selling or representing it as your own. A few people circumventing paywalls isn't going to register on the legal radar.

dragonwriter 9y ago

> Note that the decision says that violations are not criminal acts Actually, it says that they don't violate particular California and Nevada state analogs of the federal CFAA; this was, in fact, a civil case under those laws, not a criminal case, though those laws also support criminal prosecution.

Stranger43 9y ago

In order for a license violation to to exist a valid contract need to exist. and for a contract to be valid both contracting parties must enter a contract on a informed and non coercive basis an bar practically no click wrap EULA/TOS page meats. With out a valid two sided contract any website operator wanting to sue a user for misuse will have to resort to whatever laws is actually on the books.