Under 18? Using Google? You May Be A Criminal!

from the whoops dept

It's no secret that people ignore the terms of service on most sites, and there are pretty big questions concerning how enforceable any such terms really are. However, Petrea Mitchell, alerts us to an odd note at the very end of some notes on a conference session where Chris Soghoian points out that Google's terms of service forbid use by those under 18. I did some looking and Soghoian actually wrote out the details about this a few months ago. Basically, Google's terms of service state:

You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Google

But, as Soghoian notes, in all 50 states in the US, that legal age is 18 -- meaning that those under 18 may be breaking Google's terms of service. And, of course, as we learned in the Lori Drew case, violating the terms of service of a website (even if you haven't read them or done anything to agree with them!) can be grounds for making you criminally liable for "accessing a computer without authorization." That seems like a problem, doesn't it?

Now, to be fair, the chances of anyone bothering to care or enforce this is slim to none. But we saw what happened in the Lori Drew case, where prosecutors with nothing else to sue against Drew twisted the law to find her guilty of something. You could certainly see that happening in some other case as well. If prosecutors can't find anything else on a teenager who did "something" people don't like, why not charge him with "hacking" for violating Google's terms of service?

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Can Scraping Non-Infringing Content Become Copyright Infringement... Because Of How Scrapers Work?

from the this-seems-troubling dept

Earlier this year, we couldn't figure out how Facebook's lawsuit against Power.com made any sense. Power.com tried to aggregate various social networking accounts in a single place, so you could manage them all at once through a single interface. Yet Facebook charged the company with all sorts of complaints, including copyright and trademark infringement, unlawful competition and violation of the computer fraud and abuse act. Power.com asked for the case to be dismissed, but last month the judge sided with Facebook, but did so in a troubling way, by basically suggesting that since Facebook's terms of service prohibited these uses, it made it copyright infringement. Michael Scott points us to lawyer Jeff Neuberger's take on the ruling, and separately Tom O'Toole has a good analysis of the ruling. Neuberger states the following:

Judge Fogel concluded that the allegations of the complaint made out a sufficient claim of copyright infringement because Power Ventures "need only access and copy one page to commit copyright infringement." The court also found that the ToU prohibited downloading, scraping or distributing content from the Facebook Web site content except that belonging to the user, and that in any event, using automated methods, i.e., "data mining, robots, scraping, or similar data gathering or extraction methods" to access any content were also prohibited by the ToU. Thus, the court found that the allegation that Power Ventures accessed Facebook via automated means constituted made out a claim of direct copyright infringement, while the allegation that Facebook users utilized the Power.com interface to access their own profile pages made out claim of secondary copyright infringement.

Thus, because the terms of service said you can't do any automated scraping of the site, it's suddenly infringing? Even worse, the court found that even though the data being used by Power.com isn't owned by Facebook (it's the users') the scraping was still copyright infringement, because in order to scrape the non-infringing content, Power.com had to first "scrape" the whole page. O'Toole explains:

OK, so far the court has found that Power.com made unauthorized copies of the Facebook Web site. What about the fact that Facebook does not own the copyright in its users' profile data? Facebook surmounted this hurdle by arguing that the content of the Facebook page that surrounded the user's data is copyrightable and is owned by Facebook. According to Facebook, the Power.com scraper operated in a manner that required it to copy the entire Web page in order to extract the user's profile data....

Note that the court is conditioning its ruling on the assertion that the Power Ventures scraper necessarily copied the entire Web page before it processed the page and extracted the profile data. That comports with my (limited) understanding of how a Web scraper works. But is it true? If it were true, couldn't an argument be made that this is a fair use of the page? I'll leave that for better lawyers.

All of this seems a bit troubling, as it would effectively rule out scraping even non-infringing content, just because the scraper had to first read through copyrighted content to get to the non-infringing stuff. But, that seems to go against the entire purpose of copyright law. The fact that the scraper reads copyrighted content shouldn't mean that it's infringement. It's not doing anything with that content other than using it to find the content it can make use of. Anyway, this ruling probably doesn't mean all that much, since it was just to reject the dismissal request, but it does seem odd that the judge gave so much weight to Facebook's terms of service, and seems to indicate the mere act of scraping can be copyright infringement.

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Sears Settles With FTC For Putting Spyware On Customers' Computers

from the customers-aren't-lawyers dept

You may recall a couple years back, a controversy over the fact that Sears appeared to be installing spyware on the computers of online customers who had agreed to join a "community." Sears insisted this wasn't true, and that it really was software to help create a community of shoppers -- but the evidence suggested otherwise. The FTC eventually got involved, and now Sears has settled the charges that it was unfairly spying on users without clearly indicating this to users. Sears insisted that because the fine print of the terms of service for joining the community said that it would track your online browsing, it was in the clear, but the FTC noted, accurately, that most users would not have gotten that impression from signing up. As Thomas O'Toole notes about this ruling:

I'm pretty sure that attorneys would understand the breadth of the consent covered by the phrase "online browsing." It means everything. The position taken by the FTC signals the agency's belief that consumers should not be treated like lawyers when it comes to privacy-related disclosures. The FTC also appeared to be concerned about the fact that the disclosure was buried in a lengthy privacy statement, which was displayed to the consumer rather late in the consent-collecting process.

This is a good thing. Customers shouldn't need to be lawyers to understand what it is they're agreeing to, and it's nice to see the FTC recognize that fact.

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EFF Tracking Changes To Major Company Terms Of Service

from the watch-what-you-change... dept

The EFF has launched a neat little project, called TOSback, where it tracks any changes to online service agreements from a bunch of different well known companies, such as Google, Yahoo, Microsoft, Facebook and eBay. Considering that some of these companies have been known to quietly change their terms without making the details all that public, it seems like this could be quite a useful service -- at least in getting these companies to recognize that they should clearly explain why they're changing their terms and what those changes really mean.

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Disputing A Bogus Charge Is A Violation Of Terms Of Service?

from the how-does-that-work? dept

Consumerist has the story of how a guy who's account on some pay porn site got hacked, with $450 charged to his account. When he threatened to have his credit card company dispute the charge, the site warned him that doing so was a "serious violation of our terms of service." They also refused to return the money (though they said he could get credit at the site). Of course, he still had his credit card company dispute the charges and got his money back. Still, it takes quite an amazing sense of entitlement to (a) claim that you're not giving a guy whose account was hacked his money back and then (b) threaten him with a TOS violation for disputing the charge.

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Should Police Be Arrested For Illegal Hacking For Setting Up Fake Facebook Profile?

from the we-should-be-fair,-right? dept

In the Lori Drew case, she was convicted for "computer hacking" because she violated MySpace's terms of service by setting up a profile of a fake person. And for this, she deserves years in jail? Well, if that's the case, reader Roni Evron wants to know if some police officers are going to face the same charges after they set up a fake Facebook profile in order to bust up an after-prom high school party. Apparently, they set up a fake Facebook profile and friended a bunch of the kids at school, who apparently were "cavalier about accepting people into their network of friends." That, of course, is fine... but it's basically the same thing that Drew was arrested and convicted of doing.

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Court Rejects Online Terms Of Service That Reserve The Right To Change At Any Time

from the wow dept

If you look at many online terms of service, they reserve the right to change the terms at any time. Some force you to re-agree to the terms -- but others don't. In the past, courts have ruled that if someone didn't agree to the changed terms, the new terms could be found to be unenforceable, but a recent decision has gone much further, effectively saying that the entire terms of service are void if they claim they can be changed at any time. Sent in by Blake, the ruling said that Blockbuster's online terms of service were "illusory" and unenforceable because it included a clause saying it could change the terms at any time. So, even though the term it was trying to enforce was in the terms that the person agreed to, the court found the entire terms unenforceable. This is quite a ruling that could have a pretty major impact on any online service that has terms that insist they can change at any time. While it's just a district court ruling and may be reversed on appeal, it's something anyone running an online service should pay attention to.

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Facebook Overreacts: Decides All Of The Pirate Bay Is Illegal

from the oh-really? dept

I didn't bother writing up the story from a couple weeks back about a The Pirate Bay feature to easily share links to torrents on Facebook, because it wasn't particularly interesting. But, you knew that someone would overreact negatively. The question was whether it would be the entertainment industry or Facebook first. It looks like Facebook may have won. Rather than dealing with it intelligently, it overreacted and has blocked any and all links to The Pirate Bay, noting that due to the ongoing lawsuit and "controversy" it's basically decided to assume all links to The Pirate Bay are infringing and a violation of Facebook's terms of service. Now, it may very well be true that the majority of content shared via The Pirate Bay is unauthorized and infringing. But, even so, this seems to go too far. There are plenty of legitimate uses for The Pirate Bay, and there is a significant number of legitimate offerings on the site. Furthermore a link should not be considered infringing by itself. No copyright is infringed by a link alone. There were plenty of more reasonable ways that Facebook could have handled this, and it chose the sledge hammer approach. And, as David Title points out, the likely end result is merely that an arms race has begun, where The Pirate Bay will create a workaround, and Facebook will have to block yet again...

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Pissing Off Users By Changing Terms Of Service Along The Way

from the big-changes dept

One of the important things with online services is that users need to feel a certain level of trust with the service providers they use. Otherwise why would they take the leap and use them. It's no surprise that service providers often end up changing the terms of service to keep up with the times, legal changes or changes to the service itself. But, when you make a big change in the terms of service -- one that fundamentally alters what people thought they were signing up for, that's a pretty big problem. A bunch of folks have sent in the news that Kodak has changed their terms of service, such that its "free" photo sharing site (which was formerly Ofoto) is no longer free at all, but will cost users $5/year in additional services (i.e., you have to buy $5 worth of prints/year). If you don't, Kodak will simply delete your albums.

Now, obviously, Kodak is doing this to try to increase its revenue and get those who don't bring in much money off the site. Kodak certainly has every right to try to come up with a better business model. But, in changing the terms of what people had already agreed to, and in doing so, threatening to delete their photos and "treasured memories," it seems that Kodak is absolutely killing any level of trust people might have had with the site. There are tons of competitors out there (many of which do still include free options). Kodak may not mind the free users going elsewhere, but breaking that bond seems like a massively dangerous idea. Those "free" customers still can generate some revenue -- but they won't at all if you piss them off by suddenly charging them for what was previously free or deleting their photos.

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Facebook Fans The Flames Of Its TOS Change Overreaction

from the guilty-conscience? dept

Some Facebook users are in an uproar after the site changed its terms of service to say that it retains a license to users' content after they delete their account. As the company's founder, Mark Zuckerberg, explains, this change simply clarifies the point that actions on Facebook can create two copies of content. He says that when users add a friend or send a message, for instance, it generates two copies of the action: one for the user on each side. So say a user sends a message to a friend, then later deletes their account; the new TOS language clarifies that Facebook doesn't have to delete that message from their friend's inbox. As is often the case, the backlash over this change is largely an overreaction.

Even so, it's hard to think that nobody at Facebook anticipated it and took some proactive steps to address the changes and attempt to allay concerns and preclude the overreaction. Instead, Zuckerberg responds only after the fuss has been kicked up, and his explanation comes off as damage control, regardless of the motivations behind it or the TOS change. This situation seems akin to the scandal that emerged after the heads of US automakers took private jets to Washington when they went to ask for government bailout money. Whether or not the indignation over the private flights was warranted was mostly irrelevant, but the fact that nobody at the automakers anticipated it and raised a red flag smacks of stupidity. It's hard to imagine that nobody at Facebook could have seen this storm of complaints coming, generated by what many there saw as a minor TOS change. Is Facebook's TOS change really that bad? No, it's not particularly egregious -- but by not staying ahead of the backlash, Facebook comes off looking the worse for it. The point isn't that Facebook or any other company shouldn't change their TOS to better reflect their businesses and technology, but that in this day and age, any "minor" change is going to attract lots of scrutiny, and, in all likelihood, will be misunderstood and misinterpreted. This makes the handling of the change much more important than the change itself.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Thanks To The Lori Drew Case, I Can Make Each Of You A Criminal

from the oh,-the-power... dept

We've already talked about how the Lori Drew case represents a dangerous slippery slope, in that it effectively turns just about everyone into an internet criminal who can face years in jail for "criminal computer fraud," simply because they disobeyed a website's terms of service -- even if they didn't read the terms or even approve them. With the initial verdict in, Orin Kerr -- who is involved with the case as a part of Drew's legal team -- demonstrates how awful this case is by changing the terms of service on the blog he writes for in order to demonstrate how easy it is for any website to turn pretty much everyone into a criminal:

New Terms of Use for the Volokh Conspiracy: In light of the verdict in the Lori Drew case, I have decided to promulgate new Terms of Use for the Volokh Conspiracy. You are only permitted to visit the Volokh Conspiracy if you are in compliance with the Terms of Use. Any accessing the Volokh Conspiracy in a way that violates these terms is unauthorized, and according to the Justice Department is a federal crime that can lead to your arrest and imprisonment for up to one year for every visit to the blog.

By visiting this blog, you promise that:

1. You will not post comments that are abusive, profane, or irrelevant. Civil and relevant comments only, as indicated by our comment policy.
2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out.
3. Your middle name is not "Ralph." I've always thought Ralph was a funny name, and even odder as a middle name. No one with the middle name "Ralph" is welcome here.
4. You're super nice. We have strict civility rules here, and this blog is only for people who are super nice. If you are not super nice, as judged by me, your visit to this blog is unauthorized.
5. You have never visited Alaska. Okay, this one is totally arbitrary, but it's our blog and we can keep out who we want. Alaska visitors are out, too.

If you post an abusive comment; you are an employee of the U.S. government; your middle name is Ralph; you're not super nice, as judged by me; or you have visited Alaska, I have kinda bad news for you: You are a criminal, as you have just violated 18 U.S.C. 1030(a)(2)(C) by accessing the Volokh Conspiracy's service without authorization or in excess of authorization. You are only authorized to visit the blog in compliance with the Terms of Use, and by violating these terms you have become a criminal by essentially "hacking in" to the Volokh Conspiracy.

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'Free Software' Scammers Fined $2.2 Million

from the this-is-not-the-'free'-business-model-we're-talking-about dept

We've seen various incarnations of the scam (often found in infomercials) where a company offers you something for "free," but in the fine print, you're really signing up for an ongoing paid service. For years, some of the biggest "ringtone" companies made much of their money this way, offering "free" or cheap ringtones that actually involved the user signing up for a monthly service without realizing it. The infamous "Video Professor" has been accused of running a similar system, though the company vehemently denies this.

Either way, it appears that the FTC is starting to crack down on some of these practices, fining a competitor to "Video Professor," called ThinkAll, $2.2 million. Apparently ThinkAll took this scam to a new level. It offered "free" software, where you simply had to pay for the shipping and handling -- though, it sounds like that was really just so the company could get your credit card on file. After receiving that first free CD, customers were offered 3 more titles totally free (not even any shipping). If you decided to accept that software (and why wouldn't you?) it made you check a box saying you had read the terms of service. Of course no one reads the full terms of service, which include (hidden down in the 7th paragraph) the fact that in accepting this "free" software, you're actually agreeing to sign up for a monthly fee-based service. Quite sneaky... until the FTC stepped in. Hopefully other businesses take notice and start avoiding these types of scams.

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If You Don't See The Terms Of Service Until After You Buy, Are They Valid?

from the seems-a-bit-unfair dept

There have been lawsuits over software packages that only allow you to see the end user license agreement (EULA) after you've already paid for the software, but does that apply in other situations as well? Broadband Reports points us to the news that for people who sign up for Verizon's FiOS fiber optic broadband, you don't get to see the full terms of service until after it's installed. Verizon claims it's just easier this way -- and that all the important points are explained ahead of time. It also says that users can cancel within 30 days with no penalty if they're uncomfortable with the terms. However, that leaves out the fact that a lot of time and effort went into installing the actual FiOS system, which could also disrupt other systems (in fact, in a few cases -- though certainly not all -- a FiOS installation cuts the old copper line). So, in that case, it would be difficult to just go back to what you had before.

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Comcast Sorta, But Not Really, Admits To Content Jamming

from the it's-all-in-the-weasel-language dept

Internet News is reporting that Comcast has put its "speed limit in writing." This is in response to the stories from last year about how Comcast was jamming certain kinds of traffic without being clear about it to users. However, the details suggest that the headline writer is being a bit generous. Comcast hasn't come close to putting the actual limits in writing. All it actually did was sneak some weasel language into its terms of service, saying that the company "uses reasonable network management practices that are consistent with industry standards." That's hardly being upfront about what's going on in a manner that will help subscribers actually understand why certain apps appear to not be working properly. Rather than better informing customers, this seems like a move designed to get the FCC to drop its investigation of the company's traffic shaping practices -- especially since the phrase used is copied straight from an FCC statement.

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