Not Reading Ticketmaster's Terms Of Service Shouldn't Make You A Criminal

from the yet-again dept

Tue, Jul 6th 2010 2:42pm — Mike Masnick

There have been an awful lot of similar stories lately, but it is really quite troubling just how much the Computer Fraud and Abuse Act (CFAA) is being abused to turn actions like not reading a website's terms of service into a criminal offense. We had just recently discussed how this was playing out in a lawsuit involving Facebook and Power.com, but it's showing up elsewhere as well. In fact, the judge in the Facebook/Power.com case apparently based the decision on an earlier case involving Ticketmaster and a ticket reseller which used automated means to order tickets, that it could then resell.

In a similar case, it appears that there has been a criminal indictment of the company Wiseguy Tickets, who similarly automated ticket purchases from Ticketmaster's website. This isn't to say that ticket scalpers and resellers who buy up all the tickets aren't necessarily a problem, but should they be criminally liable because they violate a website's terms of service? The EFF and some others have now filed an amicus brief in the case, suggesting that this is a ridiculous outcome. No one should be criminally liable for not obeying the terms of service on a website. If that's the case, it's easy to make anyone a criminal. I could just quickly put up a terms of service that says something as ridiculous as "you must be 8 feet tall to read this website." And, if you're not, you've then violated the terms, and are guilty of criminal hacking under the CFAA -- which could potentially result in jail time. That makes no sense, and the EFF is hoping the judge recognizes this:

"Under the government's theory, anyone who disregards -- or doesn't read -- the terms of service on any website could face computer crime charges," said EFF Civil Liberties Director Jennifer Granick. "That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails."

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Filed Under: computer fraud, hacking, terms of service
Companies: ticketmaster

25 Comments

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Keven Sutton, 6 Jul 2010 @ 2:52pm

Off topic:
Well, I might be 8 feet tall. Especially for variable values of a feet. what does the law say about the measurement of a feet rather than the measurement of a foot?
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John M. Hoyt, 6 Jul 2010 @ 3:33pm

Used and abused...
Yes, this is indeed abuse of CFAA
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IshmaelDS (profile), 6 Jul 2010 @ 3:46pm

Come on Mike, you should be happy.
This means you can change your ToS to read that we all have to send you money each month. Or we are guilty of hacking you and we go to jail. You could be rich! without having to anything more than you already have.
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Anonymous Coward, 6 Jul 2010 @ 4:07pm

Judges apparently don't care about consistency, nor do politicians that pass those laws.
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Anonymous Coward, 6 Jul 2010 @ 5:02pm

I was already disturbed by not being able to choose seats, by having to pay an outrageous fee, by seeing the price change during my enquiries, by getting different prices from different IP addresses, and by their restraint of trade tactics meant to put their competitors out of business. This development makes me so wary, I won't be using their service at any time in the future.

So sorry, Cirque de Soleil, that you will be subject to collateral damage.
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coco Was Screwed, 6 Jul 2010 @ 5:38pm

I stopped using ticketmaster years ago. I just go the the venue and buy tickets...although some are actually adding fees to keep pace with all the fees ticketmaster charges so it's a wash.

It is most annoying that ticketmaster charges me a "convenience fee" for the privilege of increasing their profit margins by not having to mail me a ticket...

Pearl Jam was right, Fuck You Ticket master
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NAMELESS.ONE, 6 Jul 2010 @ 5:42pm

OR
you can't visit this website if your a federal agent associated to them or affiliated to hollywood in anyway

I WELCOME such laws...
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Anonymous Coward, 6 Jul 2010 @ 6:31pm

"By visiting this website you agree to hit yourself repeatedly in the nuts with a rock."
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Anonymous Coward, 6 Jul 2010 @ 6:42pm

It would be helpful to actually read the indictment, instead of simply relying solely upon EFF's site.

The site posted its amicus, but not the indictment.

Maybe this is a case somewhat like the one in San Diego. Then again, maybe not. It is not beyond the realm of possibility that the US Attorney for New Jersey is not trying to stretch the law beyond its breaking point, but this is impossible to determine without a copy of the indictment in hand.
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- Bubba Gump (profile), 6 Jul 2010 @ 8:19pm
  
  Re:
  You're absolutely correct. However, for those of us who aren't TAM, we can read between the lines and see insanity for what it is.
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NAMELESS.ONE, 6 Jul 2010 @ 6:43pm

or
you must dance around on front lawn naked signing your national anthem while waving a spoon
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Anonymous Coward, 6 Jul 2010 @ 6:51pm

License to Read this Post
By reading this text you accept this post's license agreement. Any who fail to read aloud the entirety of the book, "War and Peace" in the next five (5) minutes are in violation of this agreement and must pay me the sum of all positive income They* generate for the next five million (5,000,000) years.

*"They" includes ancestors, predecessors, and relatives, infinitely recursively.
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Anonymous Coward, 6 Jul 2010 @ 7:06pm

an unreasonable tos would be unenforceable (you must jump through flaming hoop naked). the intent of the company is to create profit by abusing a system. that isnt something that anyone should stand up for. not surprising to see lessig and the eff on this one, sort of proves that they stand for some pretty low end people.
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- Anonymous Coward, 6 Jul 2010 @ 7:27pm
  
  Re:
  TROLLALERT!!!
  
  http://www.techdirt.com/article.php?sid=20100706/01260510077#c254
  
  In that case there are at least three. I work with one of them. He writes in a "lowercase with some small amount of punctuation" style. He also doesn't believe a word he writes, he just likes to troll. I'll probably get kicked when we go to lunch for outing him though.
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- Anonymous Coward, 6 Jul 2010 @ 7:44pm
  
  Re:
  It proves that the EFF stand for freedom no matter for who it is, they view the issues not the beneficiaries of the issues.
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- Anonymous Coward, 6 Jul 2010 @ 9:16pm
  
  Re:
  Congratulations. You have just perfectly described a civil, not criminal, matter.
  
  TAM strikes again.
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Anonymous Coward, 6 Jul 2010 @ 8:08pm

Should be criminal to use ticketmaster
Fuck TM, they are the real crooks. That company has always been anti-customer. The only thing that keeps them going is their near monopoly on ticket sales.
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mike allen (profile), 7 Jul 2010 @ 1:28am

who bothers to read TOS anyway.
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gilroy0 (profile), 7 Jul 2010 @ 6:05am

This isn't to say that ticket scalpers and resellers who buy up all the tickets aren't necessarily a problem

Why are they a problem? I mean, I understand the annoyance factor. But doesn't the existence of scalpers basically indicate that the venue underpriced the ticket? I'm no free-market ideologue, but I've never understood why scalping is problem legally or morally.
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- Ven, 7 Jul 2010 @ 9:00am
  
  Re:
  Ticketmaster uses a (possibly anti-consumer) practice of changing ticket prices, sometimes from minute to minute, in some accusations even when the ticket is being purchased. Most scalpers now rely on computers watching the Ticketmaster site for a price drop and then use systems spread across many data centers to look like a flood of random people taking advantage of the deal. They then resell them not at inflated prices but at the non-sale market rate. Because these specials are likely quantity limited it prevents legitimate buyers from getting the savings.
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  - John Fenderson (profile), 7 Jul 2010 @ 10:17am
    
    Re: Re:
    OK, but where is the ethical problem with scalpers here? It seems to me that it indicates a (big!) problem with Ticketmaster's method of pricing, but doesn't indicate the objection to those who are exploiting their bad design.
    
    I, too, have never understood why scalping should be illegal. I am not a scalper, and have never been in a position where buying from one seemed like a good idea, but I don't see how they're doing anything so egregious that the force of law is required.
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8 foot tall guy, 7 Jul 2010 @ 7:45am

You're silly.
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Clancy, 7 Jul 2010 @ 7:49am

NOT reading.
It should however be criminal for congress-critters to vote for (or against) legislation they haven't read.
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marybeth, 7 Jul 2010 @ 7:53am

It's not as if the TOS with this info is a long document on another page. It's a couple of paragraphs in the section where you search for available tickets for an event (between where you select the number of tickets and the "find tickets" button). If you read the first of the two paragraphs you would know you can't use automated means to buy tickets.
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dowlan smith, 7 Jul 2010 @ 12:02pm

ticket scalping
As far as I see it, since TicketMaster sells ticket at price above what they pay for them, they are ticket scalpers also. They just want to use government coercion to limit competition.

TicketMaster is beneficial to the to the event holder because they lessen the risk for unsold tickets. However, I'm not sure why they are not subject to anti-trust regulation.
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