3 ms·

TOS ≠ law

by ShadowBanThis01 3y ago

TOS ≠ law

tokenadult 3y ago
Contractual agreements are enforceable at law. That's what makes them contracts.
- ShadowBanThis01 3y ago
  You also can't put illegal stuff into a contract to make it legal. Also, I didn't sign anything.
  - reaperman 3y ago
    > Also, I didn't sign anything. It's hard to take this generously. What do you mean by this, specifically? Are you saying "I didn't take out a pen and sign a physical piece of paper"? Or are you saying "I didn't click anything that says "I agree to the ToS"? What actions are you intending which you feel are enabled by not signing anything?
reaperman 3y ago
Well, feel free to refer to the case law of LinkedIn vs. HiQ, as I said in the comment you replied to. That is law.
- ShadowBanThis01 3y ago
  I did, thanks. In that case, it looks like the scraper prevailed: "The Ninth Circuit's declaration that selectively banning potential competitors from accessing and using data that is publicly available can be considered unfair competition under California law may have large implication for antitrust law."
  - reaperman 3y ago
    I think you need to look deeper. The case went back to trial multiple times after that and in the last case, HiQ was found to be in the wrong. The court ruled for hiQ and the right to do web scraping. However, the Supreme Court, based on its Van Buren v. United States decision, vacated the decision and remanded the case for further review in June 2021. In a second ruling in April 2022 the Ninth Circuit affirmed its decision. In a November 2022 ruling the Ninth Circuit ruled that hiQ had breached LinkedIn's User Agreement and a settlement agreement was reached between the two parties.[0] Practically speaking, though, the dispute had essentially reached its logical end with the last court ruling in November – hiQ had prevailed on the Computer Fraud and Abuse Act (CFAA) “unauthorized access” issue related to public website data but was facing a ruling that it had breached LinkedIn’s User Agreement due to its scraping and creation of fake accounts (subject to its equitable defenses).[1] So basically, it’s not criminal under the CFAA. Thank god. But that’s just one specific law that doesn’t apply. It still is a breach of contract and various forms of damages and injunctive relief can be found against scrapers. If the two conditions are met that I wrote several posts ago, any business based on scraping sites that have the money and motivation to find relief through the courts will be untenable. That business would find that it cannot sustain itself against repeated court actions taken against it. ToS != law, only in the very strictest naive sense. There are plenty of laws which deal with what happens once you agree to a contract and then breach the contract. Once you agree to the ToS, you have to deal with the legal framework of business law as it applies to contracts. If, for example, OpenAI wants to scrape Twitter in violation of the ToS, Twitter could find relief in the form of “specific performance” where the court requires OpenAI to remove all that information from its training dataset and retrain ChatGPT again. Twitter could also get damages for the times that ChatGPT served customers with the infringing model. If OpenAI didn’t fully remove the data, it would be exposed to escalating damages in the form of contempt of court remedies. 0: https://en.m.wikipedia.org/wiki/HiQ_Labs_v._LinkedIn https://en.m.wikipedia.org/wiki/HiQ_Labs_v._LinkedIn 1: https://www.natlawreview.com/article/hiq-and-linkedin-reach-proposed-settlement-landmark-scraping-case https://www.natlawreview.com/article/hiq-and-linkedin-reach-...

TOS ≠ law

tokenadult 3y ago

Contractual agreements are enforceable at law. That's what makes them contracts.

ShadowBanThis01 3y ago
You also can't put illegal stuff into a contract to make it legal. Also, I didn't sign anything.
- reaperman 3y ago
  > Also, I didn't sign anything. It's hard to take this generously. What do you mean by this, specifically? Are you saying "I didn't take out a pen and sign a physical piece of paper"? Or are you saying "I didn't click anything that says "I agree to the ToS"? What actions are you intending which you feel are enabled by not signing anything?

reaperman 3y ago

Well, feel free to refer to the case law of LinkedIn vs. HiQ, as I said in the comment you replied to. That is law.

ShadowBanThis01 3y ago
I did, thanks. In that case, it looks like the scraper prevailed: "The Ninth Circuit's declaration that selectively banning potential competitors from accessing and using data that is publicly available can be considered unfair competition under California law may have large implication for antitrust law."
- reaperman 3y ago
  I think you need to look deeper. The case went back to trial multiple times after that and in the last case, HiQ was found to be in the wrong. The court ruled for hiQ and the right to do web scraping. However, the Supreme Court, based on its Van Buren v. United States decision, vacated the decision and remanded the case for further review in June 2021. In a second ruling in April 2022 the Ninth Circuit affirmed its decision. In a November 2022 ruling the Ninth Circuit ruled that hiQ had breached LinkedIn's User Agreement and a settlement agreement was reached between the two parties.[0] Practically speaking, though, the dispute had essentially reached its logical end with the last court ruling in November – hiQ had prevailed on the Computer Fraud and Abuse Act (CFAA) “unauthorized access” issue related to public website data but was facing a ruling that it had breached LinkedIn’s User Agreement due to its scraping and creation of fake accounts (subject to its equitable defenses).[1] So basically, it’s not criminal under the CFAA. Thank god. But that’s just one specific law that doesn’t apply. It still is a breach of contract and various forms of damages and injunctive relief can be found against scrapers. If the two conditions are met that I wrote several posts ago, any business based on scraping sites that have the money and motivation to find relief through the courts will be untenable. That business would find that it cannot sustain itself against repeated court actions taken against it. ToS != law, only in the very strictest naive sense. There are plenty of laws which deal with what happens once you agree to a contract and then breach the contract. Once you agree to the ToS, you have to deal with the legal framework of business law as it applies to contracts. If, for example, OpenAI wants to scrape Twitter in violation of the ToS, Twitter could find relief in the form of “specific performance” where the court requires OpenAI to remove all that information from its training dataset and retrain ChatGPT again. Twitter could also get damages for the times that ChatGPT served customers with the infringing model. If OpenAI didn’t fully remove the data, it would be exposed to escalating damages in the form of contempt of court remedies. 0: https://en.m.wikipedia.org/wiki/HiQ_Labs_v._LinkedIn https://en.m.wikipedia.org/wiki/HiQ_Labs_v._LinkedIn 1: https://www.natlawreview.com/article/hiq-and-linkedin-reach-proposed-settlement-landmark-scraping-case https://www.natlawreview.com/article/hiq-and-linkedin-reach-...