Can A Web Crawler Enter Into A Contract?
from the seems-unlikely dept
The Technology & Marketing Law blog is discussing an interesting case where a woman put up some text on her website claiming that by visiting the website you were agreeing to the "contract" represented in the terms -- which included the fact that if you copied or distributed any content on the site, you agreed to pay large sums of money back to the woman. What happened next is probably pretty predictable. The Internet Archive archived a version of her page... and she tried to get money out of them. The Internet Archive went to court to have it declared that they did nothing wrong, and the woman countersued. Of course, she didn't just sue for breach of content, but copyright infringement, conversion, civil theft and racketeering (just to be safe). Racketeering certainly seems pretty extreme -- but then again so does claiming that by putting some simple text on your website anyone who visits the website (including automated web crawlers) enters into a binding contract. While the discussion focuses on whether or not a spider can enter into a clickwrap contract like that, an equally interesting question might be whether or not anyone can force people to give up their fair use rights. Right now, it seems that the courts are divided on that question -- though the argument that you cannot be forced to give up fair use rights makes a lot more sense based on the entire stated purpose of fair use rights. Still, the situation sounds quite similar to a discussion we had last year of a newspaper that tried to state on its website that fair use did not apply to its content. As for the question of whether or not something like the Internet Archive is fair use, at least one court has said that Google's cache is fair use, and that's quite similar to the Internet Archive. Either way, the case is still ongoing and should be interesting to follow. Hopefully the court will recognize that anyone who actually visits this woman's website actually violates that agreement by "making a copy" on their local hard drive -- which should help explain why the demand against copying is effectively meaningless.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Yeah, but what if her site had a "If you agree to these terms, Click Here to continue" and the copyrighted material was on the next page *after& the click here - then that would pretty much invalidate your defense because the only way to get to the copyrighted material was to "agree" to the terms.
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Re: by Anonymous Coward
The only times I can see an agreement page being of any use is to provide warning about content. Porn sites and other sites that have a minimum age requirement should have an age agreement to help reduce liability if someone underage uses their product. On the other hand, cases like this are idiotic. There is no way you can enter into any kind of binding contract without a contract, and to make a legal contract you need more then a head nod or an click of the "agree" button.
I'm curious how she is going to prove the web crawler read and understood the terms of the agreement.... since thats the absolute minimum she has to prove to even have a case. It is not illegal for it to enter public domain such as a website if there is no restrictions in place. One last thing, content on a web page can be copyrighted, but it is not copyright infringement to simply "copy" or store the material in cache or archive unless it is going to be redistributed or used in some way the author did not intend (otherwise all web browsers break the law - even the ones with caching turned off).
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Re: Re: by Anonymous Coward
I'm curious how she is going to prove the web crawler read and understood the terms of the agreement....
AI by court order! Brilliant!
That was easy, why have all these CompSci guys been sweating it so hard all these years?
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Re: (first poster)
That third point is absurd for two reasons. First, a click isn't nearly as verifiable as a signature, especially when it doesn't require information that only you can reasonably provide (e.g. a credit card number).
There are probably other reasons why a simple click shouldn't constitute a contract, but I can't articulate them.
I realize this would invalid every EULA is existence, and it probably should. Note, though, that it doesn't invalidate the right and restrictions a copyright holder places on his content, but it should invalidate supposed "agreements" made by the end user.
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Re:
Yeah, but what if her site had a "If you agree to these terms, Click Here to continue" and the copyrighted material was on the next page *after& the click here - then that would pretty much invalidate your defense because the only way to get to the copyrighted material was to "agree" to the terms.
Wrong.
Say I visit the site, hover over the link, copy the link info shown in the status bar, type that in by hand, and then used my hand-typed info to access the information. I haven't clicked... so have I agreed or not?
Say instead, I do the same thing, only instead of visiting the following pages myself, I create a link from my site using the link info, and somebody else follows the link from my site to her "protected" pages. They, also, have not clicked the magic "I agree" link on the legalese cover page. Have they agreed? Have I?
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Re: Re:Say
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We need Old West Justice.
Would be like stepping into a McDonalds and then finding out that just by entering the resturant that you are obligated to purchase $20 worth of product without any warning before you enter the establishment.
Do People not have anything better to do with thier lives?
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Re: We need Old West Justice.
Don't our courts have anything else better to do than waste my taxpaying money squabbling over something that is pretty clear-cut?
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Re: We need Old West Justice.
For instance if I go to a comedy club I have to pay for a two drink minimum per person even if I were not going to drink.
slightly different, buy why do I have to pay for drinks I do not want, since I purchased a ticket to the event that they will make money on.
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Re: Re: We need Old West Justice.
And where clicking the "Agree" button is concerned, if you had to scroll all the way through a disclaimer before clicking, it would be pretty hard to prove in court that you didn't read it. Simply putting "Agree" on a web page though with no disclaimer would be silly and ineffective in court.
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Re: Re: We need Old West Justice.
For instance if I go to a comedy club I have to pay for a two drink minimum per person even if I were not going to drink.
slightly different, buy why do I have to pay for drinks I do not want, since I purchased a ticket to the event that they will make money on.
Every one i've seen it's written right on the ticket you buy, and is listed when you buy the tickets if there's a minimum. Going to a website and you're bound by a contract just by being there? It doesn't work that way.... you cant passively agree to be bound to a contract without knowing about it. Seeing as she was practicing law without a license you'd think she'd at least know something about the law.
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This case is another example of why we need a loser pays rule for civil disputes.
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Fair Use
Is this fair use?
swik.net/Ajax/Ajaxian
swik.net/techcrunch
swik.net/techdirt
This adds no value, wayback machine and Google cache adds value.
Basically submit a feed they suck it in and create a mirror site of the submitted feed. They change the feed so the title URLs point to the a positing page on their site that gets created for each posting in the feed. All search engine optimized I might add. That's another thing all their feeds, which are feeds of a feeds, are indexed by Google, which really sucks because when I search Google I do not want feeds (XML).
Do a search on xml.swik.net (omit repeated results). I have been seeing these pages on the top of many of my searches lately.
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Re: Fair Use
swik.net/techdirt/TechDirt
swik.net/Web2.0/TechCrunch
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Crackpot
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Re: Crackpot
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Re: Crackpot
1: People that have no clue about technology/the Internet, tend to create the most gawd-awful looking websites (also see several examples of this at myspace.com)
2: Because of this entrapment-style lawsuit by someone just trying to make a quick buck (see the bottom of her website for the proof) this further proves that women are the cheapest beings on earth.
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Re: Re: Crackpot
Most of us were taught programming, not visual design.
Cheers
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I should certainly hope so
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Cache
Then we need to deactivate the cache in our browser if we don't expect to pay enormous sums of money to this woman.
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did she have a
The RFCs are not laws, but dammit, to me this makes it entrapment as well.
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last title line was truncated
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A quick swindle?
This woman is trying to pull a fast one on people but she got caught so instead of cutting running she is gonna go to court to basically force people to fall for her trap.
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Re: A quick swindle?
This is because Ebay states that the product description must be CLEAR about what product is being purchased and these swindlers post technical specs and such which one would assume is the product itself. Just because in 10-pt font at the very bottom of the page they list the item is just a picture doesn't mean the seller was clear enough to be entitled to the money.
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Yah right....
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Readers Guide
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Practicing without a liscense
Not required in the USA =P
Heck, there was an article a couple weeks ago about some guy who used Quicken to help somebody create tax forms, and he got hit with practicing without a license.
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Click to Install and give away your rights to your first born child.
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"Contract" meaning
A web crawler disqualifies from the "binding contract" under 2 prominent ways-
1) It is not a visitor to the site - a mere archive.
2) It cannot click - and agree to an agreement.
This case is even beyond stupid!
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Seriously...consider the source
This kind of frivolous lawsuit B.S. is the problem with courts today...the fact that this even has to go to court before being thrown out is an Affront to the justice system.
Miss Suzanne, I pray you read this and promptly jump off a cliff...or at least take an HTML for beginner's course...www.htmlgoodies.com perhaps would help you...mostly just waiting on the cliff leaping.
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WTF?!
Are you people serious? I've heard this argument a few times in the comments section! When has a piece of software EVER been liable for anything?
Software just is. That's all it does. It does what it's programmed/told to do. This means that the implementer of the software would be liable for any wrong doing.
The RIAA is not going after kazaa.exe for damages, it's going after (ideally) the individuals who use it to break the law.
I'm not saying this this is right...I'm not saying the woman should get the money - but to argue that software would be held accountable for such things is just ridiculous.
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She should've used a robots text file
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Meaninless
A person could not and would not be held to that "contract" never mind an automated bit of software
Standard copyright laws apply and nothing else
And god anyone actually read that the site? If this girl is meant to be a lawyer i would pity anyone who was stupid enough to hire her...but luckly that is unlikely scenario considering the following bit from her site
"We no longer provide individual advocacy services. Please do NOT call seeking Ms. Shell’s help with your case. She is under a Supreme Court injunction "
Anyone want to bet it's for extreme incompetence?
Btw if you read this Ms Shell, stop misrepresenting yourself, if you are running a "for profit" site get off the .org tld, it's for non profits
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Re: Meaninless
Good catch, can we sure her for gross incompetence and false pretense?
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They're coming to get me?
There can't be any validity to a "gotcha" contract... This woman's nuts! (uh oh, let me rephrase that for any lawyers in the audience) Please let me correct that, IMO, this woman seems nuts to me!
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Wayback Machine
The time and effort they have to spend fighting these cases means less money to invest in their service.
Just ask them to remove the material and put a noarchive meta tag in your Website. Don't make a big deal out of it and waste their resources and make our crowded justice system even more backlogged
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Sharp as a sack of wet kittens.
What now?
This woman has no grasp on the law that I can see-- not copyright law anyway. Though, it's not lacking in bright colors and 17 different fonts. My 10 year old little brother can make a better page, this woman needs a new hobby. Hell, the "disclaimer" at the bottom has you agreeing to being recorded if you call her... I think she now owns my dog too.
All this site is missing at the bottom is "Batteries Not Included"
I wish I could find her email address.. so I can explain to her why she's wrong.
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!!!
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