4 ms·

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 pla

by danans 9y ago

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.

michaelmrose 9y ago
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.
- danans 9y ago
  > 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.
- vadimberman 9y ago
  > There was no loss. And that's probably what determined the result. The courts are not run by stupid people, they don't like that the system is exploited.
- Feniks 9y ago
  There's a loss now. I bet Oracle's legal team was not cheap.
lysp 9y ago
> 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.
dragonwriter 9y ago
Oracle, not being the state government of either California or Nevada, could not and did not “push the criminal angle”, they filed a civil action charging violation of both federal copyright law and two. states anti-hacking laws; the latter allow both civil and criminal actions. They also, it may be worth noting, won on the copyright claims.
bradleyjg 9y ago
The best analogy seems to be trespass. A store generally allows anyone to come in. Absent any kind of notice you can go into a store and take pictures. But if there is a big prominent sign on the door that says "no photos allowed" and you go in and take a picture, you aren't just subject to being thrown out. You are (depending on some nuances of state law) committing criminal trespass. Likewise, if for whatever reason, you've already been thrown out and told you are never welcome back then the minute you step in the door you are trespassing. I don't see any reason why e.g. a website that prominently displays a notice saying that scrapping tools aren't welcome and that puts in place reasonable measures to prevent scrapping tools from being used, shouldn't be protected by the law of trespass from people that deliberately evade these preferences. Likewise, I don't see a banned HN poster that creates a new account shouldn't be considered a trespasser. Of course there are issues of prosecutorial discretion and limited law enforcement resources, but that's a separate question than what should or shouldn't be criminal.
- twobyfour 9y ago
  Of course, trespass laws don't apply directly, but I think that's an excellent analogy and could be an appropriate basis for future laws about web use. As far as I know, the laws against trespass in the physical world derive from common law. It's a shame we don't have a similar common-sense starting point for computing law; but computing is so new (and to many people so esoteric) that few of us have had a chance to develop something like "common sense" about it. The result is that the correct analogy for a situation isn't always obvious. For instance, we could go with the ever popular car analogy: Corporate players want their (public facing) servers to be treated under law not as stores open for business but as cars on a dealer's lot that you're welcome to test drive with permission but that it's illegal to just grab and take for a joyride.

by danans 9y ago

michaelmrose 9y ago

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.

danans 9y ago
> 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.
vadimberman 9y ago
> There was no loss. And that's probably what determined the result. The courts are not run by stupid people, they don't like that the system is exploited.
Feniks 9y ago
There's a loss now. I bet Oracle's legal team was not cheap.

lysp 9y ago

> 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.

dragonwriter 9y ago

Oracle, not being the state government of either California or Nevada, could not and did not “push the criminal angle”, they filed a civil action charging violation of both federal copyright law and two. states anti-hacking laws; the latter allow both civil and criminal actions. They also, it may be worth noting, won on the copyright claims.

bradleyjg 9y ago

The best analogy seems to be trespass. A store generally allows anyone to come in. Absent any kind of notice you can go into a store and take pictures. But if there is a big prominent sign on the door that says "no photos allowed" and you go in and take a picture, you aren't just subject to being thrown out. You are (depending on some nuances of state law) committing criminal trespass. Likewise, if for whatever reason, you've already been thrown out and told you are never welcome back then the minute you step in the door you are trespassing. I don't see any reason why e.g. a website that prominently displays a notice saying that scrapping tools aren't welcome and that puts in place reasonable measures to prevent scrapping tools from being used, shouldn't be protected by the law of trespass from people that deliberately evade these preferences. Likewise, I don't see a banned HN poster that creates a new account shouldn't be considered a trespasser. Of course there are issues of prosecutorial discretion and limited law enforcement resources, but that's a separate question than what should or shouldn't be criminal.

twobyfour 9y ago
Of course, trespass laws don't apply directly, but I think that's an excellent analogy and could be an appropriate basis for future laws about web use. As far as I know, the laws against trespass in the physical world derive from common law. It's a shame we don't have a similar common-sense starting point for computing law; but computing is so new (and to many people so esoteric) that few of us have had a chance to develop something like "common sense" about it. The result is that the correct analogy for a situation isn't always obvious. For instance, we could go with the ever popular car analogy: Corporate players want their (public facing) servers to be treated under law not as stores open for business but as cars on a dealer's lot that you're welcome to test drive with permission but that it's illegal to just grab and take for a joyride.