Twitter Tries To Move Patent Trial By Saying All Twitter Users Agree To Settle Legal Disputes On Twitter's Home Turf

Patents

from the nice-try,-but-no dept

It’s no secret that patent holders suing for infringement prefer certain venues. And, many tech companies based in the Bay Area like to try to get those cases moved to a local court instead. There’s been some efforts to move cases to better locations, but thanks to some tricky games, lawyers can frequently keep the cases where they were filed.

Apparently Twitter thought that it might try some tricky lawyers’ games of its own to get one case transferred. The company tried arguing that because the patent holder, Dinesh Agarwal, who was suing them was also a Twitter user, it meant he’d agreed to Twitter’s terms of service… which state that all lawsuits against the company must be brought in San Francisco. That’s pretty clearly a tortured reading of the Terms of Service, because this lawsuit had nothing, whatsoever, to do with Agarwal’s use of the service… and the judge didn’t buy it, allowing the case to continue in Virginia, where it was filed. As the judge noted, agreeing to this “would potentially foster satellite litigation in every patent case involving a social networking market participant,” basically guaranteeing that such lawsuits could only be brought where social networking companies wanted them to be brought.

Filed Under: jurisdiction, location, patents, terms of service
Companies: twitter

Facebook, Roger Ebert And The Pointlessness Of The Jerk Patrol

Too Much Free Time

from the it-doesn't-work dept

There’s been a lot of talk recently about issues concerning “corporate censorship” after Facebook shut down Roger Ebert’s page, supposedly because some people complained about his comments (on Twitter, not Facebook) concerning a death, which some took offense to. A lot of people are jumping on the “censorship” bandwagon, and part of it makes me wonder if we need a different word. When a private company “censors,” it’s quite different from when a government “censors,” and using the same word often leads to confusion.

But, perhaps a larger point of this is how private companies now have tremendous say over what speech they will and will not allow. That’s legal, but it leads to a certain arbitrariness, as was demonstrated here, with many people thinking Facebook went too far. The company later tried to claim it was a “mistake,” but not many people seem to believe that.

However, I think where this gets more interesting is in raising a separate issue: the total pointlessness and arbitrariness of the “jerk patrol.” Some people apparently disliked Ebert’s comments. That’s fair enough, but does a few “offended” people mean he should lose his account? That’s what makes lots of people quite uncomfortable. As it should. And yet, as all of this is happening, there are all these efforts to try to criminalize being a “jerk” online. But, as this little kerfuffle shows, what is and what is not “a jerk” or “offensive” is totally subjective, in most cases, and offending one person is hardly a reason to take action against the speaker. It’s too bad that Facebook doesn’t seem to recognize that, but it’s even scarier when governments pass laws without understanding it.

Filed Under: censorship, jerks, roger ebert, terms of service
Companies: facebook

PayPal Latest To Cut Off Wikileaks

Overhype

from the political-pressure dept

Over the weekend, Paypal became the latest company to cut off Wikileaks’ account, saying that it was a “terms of service” violation — the same excuse Amazon gave. Of course, Wikileaks had been using Paypal for quite some time before this, so it seems pretty clear that the reasoning was (yet again) political pressure put on American companies, threatening them for working with Wikileaks. What’s funny about all of this, of course, is that it’s only going to serve to give Wikileaks more attention, and drive up demand for competing services to these US companies overseas. In an effort to “stop” access to information that is widely accessible, all the US is really doing is (a) promoting that information more while (b) harming the reputation of American companies.

Filed Under: terms of service, wikileaks
Companies: paypal, wikileaks

Judge Refuses To Dismiss Criminal Charges For Violating Ticketmaster's Terms Of Service; Trial Moves Forward

Legal Issues

from the read-the-fine-print dept

We’ve discussed how it’s becoming unfortunately common for companies to use the The Computer Fraud and Abuse Act to turn things that should not be criminal cases into criminal cases. What’s often done is that someone will find a part of a website’s terms of service that was not obeyed, and then use that to claim that the access to the website was “unauthorized,” thus triggering criminal charges under the CFAA. We’ve seen it in the recent Facebook/Power.com lawsuit as well as, most famously, in the Lori Drew case, which eventually was dismissed, only after a jury ruled on the matter.

During the summer, we had discussed how the same issue was coming up in a case involving a ticket reseller who had created computer systems to get by Ticketmaster’s attempts to limit ticket sales. They would get around purchase limits and things like CAPTCHAs with some automated software that, from the sound of things, was incredibly effective. Now, violating the site’s terms of service might be a contractual violation, but a criminal one? As much as people might dislike scalpers buying up tickets to popular events and then reselling them, that doesn’t mean we should let those feelings cloud the specific legal questions.

Unfortunately, a judge has decided to punt on the matter, at least for now, refusing to dismiss the case at this stage, and setting a date for a trial next year. While the judge is aware of the Lori Drew case, she claimed that the fact pattern there was really different and, anyway, the decision on the appropriateness of using the CFAA was ruled on after the trial. That last point seems rather meaningless. The appropriateness of the CFAA doesn’t seem like something that requires a trial. In the Drew case, the trial was a total waste for everyone involved, because after it was decided, the judge decided to toss everything out anyway. Why not save everyone the time and handle it up front?

Filed Under: hacking, terms of service
Companies: ticketmaster

Librarians Violating Netflix Terms Of Service To Better Serve Patrons

Culture

from the gotta-go-with-the-librarians-here... dept

Rose M. Welch was the first of a few of you to send in the news that librarians have realized that Netflix is a great way to expand the catalog of DVDs that can be loaned out, even though it violates Netflix’s terms of service. Netflix seems a bit ambivalent about the whole thing, saying that they don’t like it, and they would expect librarians would obey the terms of service (which this does not), but that they really don’t want to sue libraries — perhaps recognizing how awful that would look from a PR standpoint. While I applaud Netflix not going straight to the lawyers, is it really that big of a deal that libraries are using Netflix in this manner?

Filed Under: dvds, libraries, sharing, terms of service
Companies: netflix

If Sarah Palin Has Someone Else Doing Her Facebooking, Is She A Criminal?

Legal Issues

from the according-to-facebook dept

The EFF has been working to make people aware of the ridiculous consequences of the really ridiculous stretching of the Computer Fraud and Abuse Act to make such things as violating the terms of service on a website a criminal offense. As part of this, they’re now pointing out that rumors that Sarah Palin doesn’t write her own Facebook messages and Tweets could mean that Palin is violating the law and criminally liable, since it goes against Facebook’s terms of service:

The problem is that Facebook’s terms of use prohibit several things that Palin and her ghostwriter may have done. Specifically, it forbids users from:

• accessing someone else’s account
• sharing their passwords to let someone else access their accounts
• transferring their accounts to someone else (without Facebook’s written permission)
• providing false personal information
• “facilitating” or “encouraging” someone else to violate the terms of use

If Palin and her ghostwriter are in fact violating Facebook’s terms of use, that probably doesn’t seem like a big deal to most people. Just by surfing around the internet, we “agree” to dozens of website terms of use every day, usually before we even read them. These terms can say anything a website operator wants, and often specifically note that they can be changed at any time without notice (or with minimal notice).

But violating a website’s terms of use is a big deal, according to Facebook. In fact, Facebook says it’s a federal crime.

The point, of course, is not to accuse Sarah Palin of criminal behavior, but to point out the ridiculousness of saying that terms of service violations are a criminal offense, as many have been doing (including Facebook) in various lawsuits.

Filed Under: fraud, sarah palin, terms of service
Companies: facebook

Good News: Violating Terms Of Service Is Not Hacking; Bad News: Circumventing Weak Tech Blocks Might Be

Legal Issues

from the some-good,-some-bad dept

We’ve been covering the ridiculous lawsuit that Facebook has been pursuing against Power.com for a while now, specifically worrying about how, if Facebook prevailed, it could mean that violating an online terms of service in accessing your own data, could make you a criminal. That outcome seemed ridiculous, but the way Facebook read federal computer fraud statutes, it was possible. Thankfully, the court has shot down that argument.

But it’s not all good news. In the same ruling, the court did say that Power.com (an aggregator of data from various social networks) still may have violated computer hacking laws by changing its IP address. That’s because Facebook had blocked Power.com’s old IP address to try to block the site from accessing user account data. As the EFF explains:

In other words, it may be a crime to circumvent technological barriers imposed by a website, even if those measures are taken only to enforce the terms of service through code. There’s nothing inherently wrong or unlawful about avoiding IP address blocking, and there are valid reasons why someone might choose to do so, including to sidestep anticompetitive behavior by other Internet services. As long as an end user is authorized to access a computer and the way she chooses doesn’t cause harm, she should be able to access the computer any way she likes without committing a crime.

Of course, given the way the DMCA handles circumvention for copyright (it’s not legal even if for legal uses), perhaps there’s some precedent for this kind of ridiculous, totally counter-intuitive outcome.

Filed Under: circumvention, fraud, hacking, terms of service
Companies: facebook, power.com

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

Legal Issues

from the yet-again dept

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.”

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

Could Accessing Your Own Data On Facebook Make You Criminally Liable?

Legal Issues

from the hopefully-a-court-says-otherwise dept

We’ve been following the rather bizarre and dangerous lawsuit filed by Facebook against Power.com, an online service that tries to let users aggregate various social networking activity into a single service. All Power.com does is let a willing user have Power.com’s tools log into Facebook and reuse/reformat the data within its own framework. From a user’s perspective, this could be quite useful. From Facebook’s perspective this is both a violation of copyright law and a violation of computer hacking laws. Why? Because Facebook says so. That is, it says so in its terms of service, and it’s arguing that in ignoring the terms of service, Power.com is criminally hacking.

The EFF has filed a new amici brief in the case pointing out the logical problems with this argument. It’s saying that if a user chooses to access his or her own data that is stored in Facebook, using a tool of his or her own choice… that can open themselves up to criminal liability, just because it violates some random term in Facebook’s terms of service. That clearly seems to go way beyond the purpose of anti-computer hacking laws:

This is not an esoteric business issue, because the legal theories Facebook is pushing forward would make it a crime not to comply with terms of service. People have already faced criminal charges for violating a site’s terms of use policy. For example, in United States v. Lori Drew, a woman was charged with violating the federal computer crime law for creating a false profile that was used to communicate inappropriately with a teenager who eventually committed suicide. EFF filed an amicus brief in that case arguing that terms of service do not define criminal behavior, and the charges were eventually dismissed. We also defended Boston College computer science student Riccardo Calixte, whose computers, cellphone and iPod were seized by local police who claimed that he violated criminal law by giving a fake name on his Yahoo account profile. A justice of the Massachusetts Supreme Judicial Court ordered police to return the property after finding there was no probable cause to search the room in the first place.

Using criminal law to enforce private website operators’ terms of use puts immense coercive power behind measures that may be contrary to the interests of consumers and the public. EFF believes that users have the right to choose how they access their own data, and that services like Power’s give users more options. So long as the add-on service does not access off-limits information and is not harmful to server functionality, authorized users who choose add-on technologies like Power’s commit no crime. Frighteningly, under Facebook’s theory, millions of Californians who disregard or don’t read terms of service on the websites they visit would risk criminal liability.

Filed Under: hacking, terms of service
Companies: facebook, power.com

If You're A Terrorist, You're Not Allowed To Use iTunes

(Mis)Uses of Technology

from the that'll-show-them dept

Michael Scott points us to someone who was reading carefully through the iTunes terms of service, and noticed that it appears to say that you can’t use the program if you’re recognized as a terrorist by the US government. The specific clause reads:

You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

And, as Nate Oman notes:

Notice, as I read this clause not only are terrorists — or at least those on terrorist watch lists — prohibited from using iTunes to manufacture WMD, they are also prohibited from even downloading and using iTunes. So all the Al-Qaeda operatives holed up in the Northwest Frontier Provinces of Pakistan, dodging drone attacks while listening to Britney Spears songs downloaded with iTunes are in violation of the terms and conditions, even if they paid for the music!

That’ll show ’em…

Now wouldn’t that be a great lawsuit? Seeing Apple take those on the US terrorist list to court for breaking their iTunes terms of service?

Filed Under: itunes, terms of service, terrorists