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The idea that you could be sued[1] with breach of contract for violating a ToS in a case like this is goddamn insane. A contract can only be formed if both part

The idea that you could be sued[1] with breach of contract for violating a ToS in a case like this is goddamn insane. A contract can only be formed if both parties agree to it; and you can't be forced to agree to a contract against your will. Coercing someone into entering a contract is literally illegal. So just don't accept the ToS. They can't make you accept it, no matter what "by [breathing] you accept our ToS" verbiage they put in it. Sure, maybe that would make your access of the website "hacking" ("accessing a computer without permission", since you rejected the contract which would grant permission)... but the court rejected that argument in HiQ vs LinkedIn. [I get that this probably isn't how a typical court would see it, but to me that reflects pro-corporate bias and corruption more than any kind of sane application of common law.] [1]. Edit: originally this read "charged", but "sued" is more accurate. But I guess what I really mean is "successfully sued". Anyhow.

dfee 7y ago
Excellent insight. I never knew how to understand those anti-scraping policies.
mirimir 7y ago
There is no "be charged" in civil cases. Anyone can sue anyone about anything. And as TFA notes, if you're sued, you must defend yourself. Or you can get a default judgment against you.
- kazinator 7y ago
  A default judgment is just a document that wants you to do something, no different from that TOS that you ignored.
  - lotu 7y ago
    Except the court is empowered to make you follow it.
- nshepperd 7y ago
  Thanks, you are correct. I have updated my comment accordingly.
parhamn 7y ago
Im actually curious what the actual legal requirement for 'acceptance' is here. Is using a website and knowing that it has a TOS and continuing using it implicit acceptance of the TOS? Can you simply put a "by a using this website you agree to the TOS" banner without explicitly getting consent?
- TheSpiceIsLife 7y ago
  If you access data available via a http request with software that doesn’t display the website in the typical web-browser-sense, are you “using” the website?
edoo 7y ago
To me it is analogous to creating a ToS for your house where you claim if anyone takes a picture of it from a public space you are now owed money. If you wanted to enter the house and take pictures but couldn't without agreeing to the ToS that is a different matter. This might be why all LinkedIn profiles are behind a registration wall now.
jammygit 7y ago
The legal innovation is this: by being here, you consent to <15 page contract>. Imagine that in the real world. I honestly expect it to become commonplace - by entering our store, you agree to the terms posted in the binder you may ask to view.
- filoleg 7y ago
  That is kind of how it is already though. For a specific example, it is legal to conceal carry in public spaces in my state, but I have seen a lot of stores having some extra rules posted on their window saying that by entering the store you agree to their no-carry rule, among others.
  - panarky 7y ago
    I don't know where you live, but in Texas the sign in the store's window is backed up by state law. If the property owner posts a sign that says no guns, and you carry anyway, you're guilty of an offence. Source: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30.06 https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30....
    - deleted 7y ago
      [deleted]
    - sneak 7y ago
      In Nevada, those signs do not carry force of law.
    - filoleg 7y ago
      I think you misunderstood my comment. The parent was saying: >Imagine that in the real world. I honestly expect it to become commonplace - by entering our store, you agree to the terms posted in the binder you may ask to view. My point to this was that it isn't that much of a far-fetched scenario, as it already happens with "no guns on store premises" signs in my state. You consent to the arbitrary rule by entering the store. I bet it is already backed up by state law (not sure 100%, but I believe so), just like it is in Texas (I am in WA), so I agree with you.
rayiner 7y ago
You can’t coerce someone into a contract against their will, but you also can’t try to get the benefits of a contractual arrangement without agreeing to the contract. And agreement does not have to mean signing on a dotted line. For example, if you say “I’ll $100 for someone to clean my yard,” and someone comes and does it, the contract is binding (acceptance by performance). In the Linked-In case here, someone didn’t just happen to involuntarily agree to the TOS by making an HTTP request. They agreed to the TOS as part of creating a new account. That’s an affirmative act, as part of a bargained-for exchange. It’s no more “coercive,” in substance or form, than the release I signed the other day to rent a jet ski. You want the benefit of access? Abide by the terms. After having agreed to the terms, the Does violated them repeatedly on a mass scale. Again, this wasn’t accidental. The complaint lists a litany of ways where the scrapers clearly encountered technical barriers Linked In put in place, and used technical means to get around them.
- EGreg 7y ago
  Suppose a company allows anyone to access HTTP resources without authenticating. In that case, can people get in trouble for scraping such HTTP resources at scale, all around the Internet? I am worried not about breaching the TOS, but the kind of "hacking" definition that involves "circumventing the intended use" regardless of technological availability and never agreeing to a single contract.
  - rayiner 7y ago
    If by “hacking” you’re talking about the CFAA, (1) violating that statute requires knowledge that you’re exceeding authorized access; (2) the Ninth Circuit has held that merely violating the TOS can’t be the basis for a CFAA violation anyway. To go back to the Linked-In example of the article. The predicate for the CFAA claim is not merely scraping. It’s intentionally bypassing technological measures intended to block the scraping, after there was notice that the scrapping was not permitted. It’s very much like real life. If a shop keeper has the door open, he can’t sue you for trespass for walking in and looking around. That’s called implied license. But if he kicks you out and tells you not to come back, you can be prosecuted for trespass if you come back, even if the shop keeper leaves the door open for everyone else. An open web server is similar.
cortesoft 7y ago
You can logically argue the ridiculousness, but the law doesn't care... since courts have sided with TOS restraints, they absolutely can enforce it. Also, they aren't 'forcing' you to accept their TOS. You are free to stop requesting from their site.
PopeDotNinja 7y ago
One thing that just occurred to me was the fact that pretty much TOS says it can be updated at anytime without notice. In theory they could update the TOS on a per request basis. Get request, decide caller has lots of money, and say in TOS "by scraping this site you owe us 14 bajillion dollars". Alternatively, how can any website prove the TOS was even mentioned at the time a request was made? You can't enforce a contract that wasn't available to be consented to. You gonna put a TOS version at the head of every website, and have that version archived somewhere accessible later?
User23 7y ago
NAL, but my understanding is that the Computer Fraud and Abuse Act[1] is what governs this. Essentially unauthorized access to a system is unlawful and authorization can be conditioned on using the system in a certain way, like, for example, not crawling it. Merely having a server openly serving data is no more of a justification for unauthorized access than leaving a door unlocked is justification for burglary. Edit: This is also why you should never evade a ban. It's potentially a federal felony. [1] https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act

dfee 7y ago

Excellent insight. I never knew how to understand those anti-scraping policies.

mirimir 7y ago

There is no "be charged" in civil cases. Anyone can sue anyone about anything. And as TFA notes, if you're sued, you must defend yourself. Or you can get a default judgment against you.

kazinator 7y ago
A default judgment is just a document that wants you to do something, no different from that TOS that you ignored.
- lotu 7y ago
  Except the court is empowered to make you follow it.
nshepperd 7y ago
Thanks, you are correct. I have updated my comment accordingly.

parhamn 7y ago

Im actually curious what the actual legal requirement for 'acceptance' is here. Is using a website and knowing that it has a TOS and continuing using it implicit acceptance of the TOS? Can you simply put a "by a using this website you agree to the TOS" banner without explicitly getting consent?

TheSpiceIsLife 7y ago
If you access data available via a http request with software that doesn’t display the website in the typical web-browser-sense, are you “using” the website?

edoo 7y ago

To me it is analogous to creating a ToS for your house where you claim if anyone takes a picture of it from a public space you are now owed money. If you wanted to enter the house and take pictures but couldn't without agreeing to the ToS that is a different matter. This might be why all LinkedIn profiles are behind a registration wall now.

jammygit 7y ago

The legal innovation is this: by being here, you consent to <15 page contract>. Imagine that in the real world. I honestly expect it to become commonplace - by entering our store, you agree to the terms posted in the binder you may ask to view.

filoleg 7y ago
That is kind of how it is already though. For a specific example, it is legal to conceal carry in public spaces in my state, but I have seen a lot of stores having some extra rules posted on their window saying that by entering the store you agree to their no-carry rule, among others.
- panarky 7y ago
  I don't know where you live, but in Texas the sign in the store's window is backed up by state law. If the property owner posts a sign that says no guns, and you carry anyway, you're guilty of an offence. Source: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30.06 https://statutes.capitol.texas.gov/Docs/PE/htm/PE.30.htm#30....
  - deleted 7y ago
    [deleted]
  - sneak 7y ago
    In Nevada, those signs do not carry force of law.
  - filoleg 7y ago
    I think you misunderstood my comment. The parent was saying: >Imagine that in the real world. I honestly expect it to become commonplace - by entering our store, you agree to the terms posted in the binder you may ask to view. My point to this was that it isn't that much of a far-fetched scenario, as it already happens with "no guns on store premises" signs in my state. You consent to the arbitrary rule by entering the store. I bet it is already backed up by state law (not sure 100%, but I believe so), just like it is in Texas (I am in WA), so I agree with you.

rayiner 7y ago

You can’t coerce someone into a contract against their will, but you also can’t try to get the benefits of a contractual arrangement without agreeing to the contract. And agreement does not have to mean signing on a dotted line. For example, if you say “I’ll $100 for someone to clean my yard,” and someone comes and does it, the contract is binding (acceptance by performance). In the Linked-In case here, someone didn’t just happen to involuntarily agree to the TOS by making an HTTP request. They agreed to the TOS as part of creating a new account. That’s an affirmative act, as part of a bargained-for exchange. It’s no more “coercive,” in substance or form, than the release I signed the other day to rent a jet ski. You want the benefit of access? Abide by the terms. After having agreed to the terms, the Does violated them repeatedly on a mass scale. Again, this wasn’t accidental. The complaint lists a litany of ways where the scrapers clearly encountered technical barriers Linked In put in place, and used technical means to get around them.

EGreg 7y ago
Suppose a company allows anyone to access HTTP resources without authenticating. In that case, can people get in trouble for scraping such HTTP resources at scale, all around the Internet? I am worried not about breaching the TOS, but the kind of "hacking" definition that involves "circumventing the intended use" regardless of technological availability and never agreeing to a single contract.
- rayiner 7y ago
  If by “hacking” you’re talking about the CFAA, (1) violating that statute requires knowledge that you’re exceeding authorized access; (2) the Ninth Circuit has held that merely violating the TOS can’t be the basis for a CFAA violation anyway. To go back to the Linked-In example of the article. The predicate for the CFAA claim is not merely scraping. It’s intentionally bypassing technological measures intended to block the scraping, after there was notice that the scrapping was not permitted. It’s very much like real life. If a shop keeper has the door open, he can’t sue you for trespass for walking in and looking around. That’s called implied license. But if he kicks you out and tells you not to come back, you can be prosecuted for trespass if you come back, even if the shop keeper leaves the door open for everyone else. An open web server is similar.

cortesoft 7y ago

You can logically argue the ridiculousness, but the law doesn't care... since courts have sided with TOS restraints, they absolutely can enforce it. Also, they aren't 'forcing' you to accept their TOS. You are free to stop requesting from their site.

PopeDotNinja 7y ago

One thing that just occurred to me was the fact that pretty much TOS says it can be updated at anytime without notice. In theory they could update the TOS on a per request basis. Get request, decide caller has lots of money, and say in TOS "by scraping this site you owe us 14 bajillion dollars". Alternatively, how can any website prove the TOS was even mentioned at the time a request was made? You can't enforce a contract that wasn't available to be consented to. You gonna put a TOS version at the head of every website, and have that version archived somewhere accessible later?

User23 7y ago

NAL, but my understanding is that the Computer Fraud and Abuse Act[1] is what governs this. Essentially unauthorized access to a system is unlawful and authorization can be conditioned on using the system in a certain way, like, for example, not crawling it. Merely having a server openly serving data is no more of a justification for unauthorized access than leaving a door unlocked is justification for burglary. Edit: This is also why you should never evade a ban. It's potentially a federal felony. [1] https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act