Can A Web Crawler Enter Into A Contract?

from the seems-unlikely dept

Fri, Mar 16th 2007 6:02am — Mike Masnick

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.

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40 Comments

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Anonymous Coward, 16 Mar 2007 @ 6:15am

"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"

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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SocietySucks, 16 Mar 2007 @ 6:23am

We need Old West Justice.
If she wants to try and con people into frivolous lawsuits then she should have a disclaimer before you visit her actual site.
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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COD, 16 Mar 2007 @ 6:33am

I believe that one of the basic tenants of contract law is that both parties must be capable of understanding that they are entering into a contract. It'll be fun to see her prove that the software understood the contract.

This case is another example of why we need a loser pays rule for civil disputes.
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Anonymous Coward, 16 Mar 2007 @ 6:37am

Fair Use
I just submitted an issue I have with swik.net but it is relevant so I will comment here as well.

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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Anonymous Coward, 16 Mar 2007 @ 6:52am

Re: Fair Use
sorry wrong urls for techcrunch and techdirt here are the correct ones.

swik.net/techdirt/TechDirt
swik.net/Web2.0/TechCrunch
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TheDock22, 16 Mar 2007 @ 6:54am

Re: We need Old West Justice.
Yea, both parties have to consciously agree to a contract before the contract can hold up in court. So unless she has that special "Click here to agree" I doubt anything will come of this.

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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Vincent Clement (profile), 16 Mar 2007 @ 6:58am

Crackpot
Has anyone visited the actual website? I'm sure it will make the Top 10 Ugliest Website list that pops up every now and then at digg. Also, she was found guilty of practising law without a licence in the State of Colorado. This is an example of yet another advocate going over the edge.
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Casper, 16 Mar 2007 @ 7:24am

Re: by Anonymous Coward
Simply clicking "agree" to enter a website can't be used as a binding contract. It will very seldom hold up for liability issues, let along a forfeit of rights. People can put those all over the place, but in reality, they are not even as powerful as the standard software EULA (which is only as powerful as the company's bank account).

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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EdB, 16 Mar 2007 @ 7:47am

Re: Crackpot
Yeah pretty ugly. The only thing missing is *blink*.
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Anonymous Coward, 16 Mar 2007 @ 7:48am

Re: We need Old West Justice.
Some establishments do this.

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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Jon, 16 Mar 2007 @ 7:51am

Re: (first poster)
I'm not certain the "by clicking here you you agree..." condition has ever been truly tested in a court. First, it assumes you have enough technical knowledge to understand it. Second, it assumes that being click-happy can legally bind you to a contract. Third, it assumes that it can be proven that "you" are the one who agreed.

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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Anonymous Coward, 16 Mar 2007 @ 7:51am

I don't understand. If she dosn't want her site crawled by robots she has the recourse of creating a robots.txt to deny all. Also since she's offer content over a free medium isn't this like entrapment of some kind?
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TheDock22, 16 Mar 2007 @ 7:54am

Re: Re: We need Old West Justice.
I'm not sure a club like that would make as much profit off the ticket prices as you may think. Back in my younger days, I worked at a movie theater for a couple years. We would make .0005% off the movie ticket prices, and even they we wouldn't get the money until the end of the year from the main branch company. The only way we were able to stay open was popcorn/candy sales, which is why they are so high these days.

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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Adrian L, 16 Mar 2007 @ 8:00am

I should certainly hope so
Just because a guy wears a mask and swings around on webs is no reason to deprive him of the right to contract. If the "secret identity" thing is a problem, he can have his friends Peter Parker or Harry Osbourne act as witnesses.
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Manuel, 16 Mar 2007 @ 8:05am

Cache
"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"

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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Matt, 16 Mar 2007 @ 8:13am

did she have a
The IA does observe that convention. I don't know if any law supports this, but as a matter of common sense, I would consider a robots.txt file the equivilent of a "posted property" sign. In the absence of one, there's no way a crawler could know to avoid indexing the site.

The RFCs are not laws, but dammit, to me this makes it entrapment as well.
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Matt, 16 Mar 2007 @ 8:16am

last title line was truncated
It should have said: "did she have a robots.txt file?"
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Dosquatch, 16 Mar 2007 @ 8:36am

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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Dosquatch, 16 Mar 2007 @ 8:39am

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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Sanguine Dream, 16 Mar 2007 @ 8:39am

A quick swindle?
This sounds like those "clever" people on ebay that have "selleing a PS3" going for less then half the $600 price tag with the Buy Now option. A nonobservant person quickly buys only to get a photo of a PS3 in the mail. They try to complain only to have the seller show them the fine print of the "sale" that states it was a picture. Then the seller procceds to brag about "pwning sum n00b on ebay".

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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Gabe, 16 Mar 2007 @ 8:57am

Yah right....
I'm going to put up a billboard on the side of the 405 freeway that says "If you read this, you are legally binded by contract to send me $10 per use." and then sue everyone in Los Angeles. This lady is BRILLIANT!!!
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Anonymous Coward, 16 Mar 2007 @ 9:36am

Re: Crackpot
Her website ( http://www.profane-justice.org ) proves two points;

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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Bob Dole, 16 Mar 2007 @ 9:41am

Readers Guide
Bob Dole didnt have the fancy Google search engine, he used the Readers' Guide to Periodical Literature at the old school library. Bob Dole worries about "Fair Use". Bob Dole remembers when copy shops went belly up printing parts of books under the fair use clause. Bob Dole had to go to the local copy shop to get copies, then his local store closed which was bad because he didn't have the techo happy printer-copier-fax machine, grew up on a farm you know we used pencils to copy things, but that home town copy shops . 5 Cents a copy was a realy bargan, good old American value. Bob dole remembers when his old type righter had a "Cents" key on it and he didn't have to type out "cents"
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Raptor85, 16 Mar 2007 @ 9:52am

Re: Re: We need Old West Justice.
Some establishments do this.

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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billy, 16 Mar 2007 @ 10:16am

Practicing without a liscense
"Seeing as she was practicing law without a license you'd think she'd at least know something about the law."
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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Anonymous Coward, 16 Mar 2007 @ 10:34am

Sounds like she was learning from the EULA Lawyers.

Click to Install and give away your rights to your first born child.
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TheDock22, 16 Mar 2007 @ 10:53am

Re: A quick swindle?
Actually in all the cases I've seen about being sent photos instead of the actual product, the courts have ruled in favor of buyer and orders the return of all monies.

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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hans, 16 Mar 2007 @ 11:37am

I just think its sad a website geared towards human rights act this way. Greedy ugly people going under the guise of something like this are sub-human.
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Sandhya Reddy, 16 Mar 2007 @ 11:40am

"Contract" meaning
The true meaning of an internet "contract" in 9 out of 10 cases, means that an agreement is presented to the second party, of equal nature as the first and then agreed upon, usually by a click.
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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Wow, 16 Mar 2007 @ 11:44am

Seriously...consider the source
Wow, not only is this offensive, but if you read through the bottom of her page (thanks for giving a link) and then click on the terms and agreements, it does indeed pop up an I agree button. After clickingit you're offended by bright alternating colors that would give an autistic kid a brain tumor. Within this page they talk of the "child savers" and how this site is such valuable information that they can charge you 5,000 per copy of each page you have stored, on any medium including magnetic...whoops better clear my cookies...

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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TriZz, 16 Mar 2007 @ 11:53am

WTF?!
I'm curious how she is going to prove the web crawler read and understood the terms of the agreement....

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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Orlando, 16 Mar 2007 @ 11:56am

She should've used a robots text file
Isn't that what robots.txt is for?
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Not So Wise, 16 Mar 2007 @ 11:57am

Meaninless
Her "contract" is meaningless, there is not even the basic "i agree" click link just a bunch of badly formatted text at the bottom of the page. (think formatting is designed to make it easier to read the "key points" but really just make the thing as a whole harder to read)
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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TheDock22, 16 Mar 2007 @ 12:16pm

Re: Meaninless
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

Good catch, can we sure her for gross incompetence and false pretense?
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Matt, 16 Mar 2007 @ 1:33pm

They're coming to get me?
Hows this for looney? When the stupid "I consent - Ok/Cancel" pop up comes up, if you hit "cancel" another pop-up follows that says you're bound by the conditions anyway, then sends you on the the next page!

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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Douglas Tatelman (profile), 16 Mar 2007 @ 1:39pm

Re: Re: Crackpot
As to your point # 1 - The problem is a sense of design. I know lots of techie folks that design the most god awful screens and pages.

Most of us were taught programming, not visual design.

Cheers
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security, 16 Mar 2007 @ 9:33pm

Wayback Machine
Wayback Machine is such a valuable resource for historians and for society - and will be an asset for future generations.

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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The infamous Joe, 16 Mar 2007 @ 10:47pm

Sharp as a sack of wet kittens.
If you are confronted with the "Click to Accept" popup on this hack's page, then click "Cancel" It will go on to the next popup anyway, to which you click the close "x" in the top right. Then you are delivered to wherever you were going, but you rejected the terms twice.

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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Shahzad Khan, 17 Mar 2007 @ 1:21pm

!!!
considering this case, I guess anyone who visits her website probably violates the agreement (contract) since the browsers save a copy of the content on the HDD... so everyone's a theif ? damn !
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Roger, 19 Mar 2007 @ 11:35pm

Re: Re:Say
SAY how funny I agree,or I disagree answer is who or what your dealing with say is this a game or say is this a fact seems say could be link to matters or thoughts say does it realy matter or say can one express thoughts. Me or I, does it say whats next true or lies .Say how about cares and this does matter to me or I .....and liars is not my style or whys !Say what! say when ,were ,say whoom say does one being curious as all humans are does that mean it is a togatheness,say you were hungry and look at a box of cereal say does that give the store owner the rights to your thoughts likes or dislikes .Say does this also give the press the rights to tell others lies yet steal others dreams or wishes!Can you sing Say can you see the---------------------------coming of the lord! Say has anybody told you they love you today ? Well I did bye my friend.....
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