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0 pointscookiecaper9y ago0 comments

>How can TOS have legal power for the case scraping? A website is a public property. If I'm visiting it without logging in, I don't have a chance to accept TOS.

This is called "clickwrap". There is usually a notice in the footer of each page that says something like "By using this site, you agree to our Terms of Service." Typically, this kind of notice has been held enforceable. More recently, judges have been demanding that such notices be placed more prominently before they're held enforceable (e.g., somewhere above the fold), but that's it.

>Imagine a hotel that makes guests sign a document saying they will not make photographs of the building. If I'm not a guest, I can take photographs of it and I can't even know that would be illegal.

The reasonable laws that exist in meatspace are not applicable online, because once you hit someone else's server, you're considered to be on their property and they have the right to control what you do there. There is no "public property" from which to safely stand and take photographs in the internet.

Also, photographs of structures may not be free to use. Architectural copyrights went into effect in the early 90s and have a term of either 90 or 120 years. Thus, if you take a photograph of a building built in 1991 and the year is not yet 2111, there is a chance that the architect can claim infringement.

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11 comments · 4 top-level

comex9y ago· 4 in thread

"Clickwrap" refers to situations where you have to click through before using the service, hence the name. Agreements which are simply a passive notice in a footer somewhere are called "browse-wrap", and are much less likely to be considered enforceable:

https://en.m.wikipedia.org/wiki/Browse_wrap

cookiecaperOP9y ago

The line is blurred between clickwrap and browsewrap -- those are colloquial terms to describe ToS notices, not legal terms. Is it still browsewrap if you say "By clicking any of the links on this site, you agree to the ToS"? How far away from the clickable buttons must the statement be to be browsewrap instead of clickwrap? The distinction is really only a technicality in the wording, not anything substantive. In practice, you are still being forced to agree to a binding contract (many of which remove one's right to sue in a court of law) just by going past a landing page.

Even if we entertain a distinction between browsewrap and clickwrap, browsewrap is generally enforceable, especially after minor modifications to placement and/or font size.

gnud9y ago

That notice is typically in the footer, and a screen reader will reach the nav-bar before mentioning the TOS notice.

Even for sighted people, the notice is often easy to miss - and this is by design.

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comex9y ago

Neither of us has explicitly mentioned a jurisdiction, but assuming you, like me, are referring to the United States...

I suppose I can do no better than quote from the Wikipedia page I linked:

> The Second Circuit then noted that an essential ingredient to contract formation is the mutual manifestation of assent. The court found that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms."

The same page cites a number of cases where a "browsewrap" agreement was found unenforceable and only one where one was found enforceable - and the latter, for what it's worth, involved a sale taking place through the website rather than anything resembling passive browsing. Of course there exist other cases not listed; and there are situations that muddle the distinction between clickwrap and browsewrap. But at least, the very common pattern of, as you said, burying "a notice in the footer of each page" without anything vaguely resembling active consent, as practiced by probably the majority of commercial websites on the internet, seems to pretty clearly fall on the unenforceable side of the line based on those precedents.

lugg9y ago

Heh, fwiw, there is another one, shrink-wrap agreements, where you can't read the agreement until you've removed the shrink-wrap but doing so means you've agreed.

apricot9y ago· 2 in thread

> Thus, if you take a photograph of a building built in 1991 and the year is not yet 2111, there is a chance that the architect can claim infringement.

The architect can claim infringement all they want, they don't have a case. From https://www.law.cornell.edu/uscode/text/17/120 :

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

cookiecaperOP9y ago

Thanks for pointing this out. I had run across this before, but I guess I disregarded it as I felt that for many uses, "ordinarily visible from a public place" is vague and would still result in an action where one would be forced to prove that the depicted building is ordinarily visible from a public place in court. I would like to know if a "public place" means exclusively public property or if it means private property onto which the public is welcomed, and whether a pictorial depiction is infringing if the subject is rendered as it would be seen from a "private place", whatever that is, especially if the artist or photographer had not been on that private place personally.

This is an important caveat to architectural copyright, however, so thanks for clarifying.

apricot9y ago

"Public place" is indeed a vague term. In some statutes, it has a definition that includes publically accessible private property such as common areas of businesses, hospitals, etc. Does it include places where access depends on payment of a fee? How high above the ground do public places extend (thinking of photography drones)?

See also https://mentalhealthcop.wordpress.com/2013/09/20/place-to-wh... which shows the same ambiguity exists in the UK.

wang_li9y ago· 1 in thread

I have a custom X-TOS header in all of my http/https requests that states that the company who owns rights to the website my request is sent to and replies with data owes me:

1. Total privacy, they will not track me activity on their website, including any logs.

2. They will send me a cashier's check for $1,000 for each byte that they send to me.

3. They will provide me with Mana Sakura's cell phone number.

I'm still waiting for checks and a phone number.

cookiecaperOP9y ago

If you can convince a judge that this represents an enforceable contract, as has been done and established with clickwrap, then you should be able to get what you're owed. :)

It is ridiculous. Something like "pagewrap" can't trump the consumer protections that apply to a physical good like a book, it would be laughed off. But the law doesn't contemplate network access so reasonably.

jessaustin9y ago

IANAL but this seems perverse. In no meaningful sense am I on corporate property when my computer in my house sends signals to another computer, formatted so that they will be re-sent in turn to a series of other computers, the last of which decides on its own based entirely on the signal it receives from the penultimate host to send a "response" to a different series of other computers, the last of which is my computer in my house.

Surely there are better ways to enforce IP restrictions than this tortured analogy of networked computing to physical location?

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11 comments · 4 top-level

comex9y ago· 4 in thread

https://en.m.wikipedia.org/wiki/Browse_wrap

cookiecaperOP9y ago

Even if we entertain a distinction between browsewrap and clickwrap, browsewrap is generally enforceable, especially after minor modifications to placement and/or font size.

gnud9y ago

That notice is typically in the footer, and a screen reader will reach the nav-bar before mentioning the TOS notice.

Even for sighted people, the notice is often easy to miss - and this is by design.

1 more reply

comex9y ago

Neither of us has explicitly mentioned a jurisdiction, but assuming you, like me, are referring to the United States...

I suppose I can do no better than quote from the Wikipedia page I linked:

lugg9y ago

Heh, fwiw, there is another one, shrink-wrap agreements, where you can't read the agreement until you've removed the shrink-wrap but doing so means you've agreed.

apricot9y ago· 2 in thread

> Thus, if you take a photograph of a building built in 1991 and the year is not yet 2111, there is a chance that the architect can claim infringement.

The architect can claim infringement all they want, they don't have a case. From https://www.law.cornell.edu/uscode/text/17/120 :

cookiecaperOP9y ago

This is an important caveat to architectural copyright, however, so thanks for clarifying.

apricot9y ago

See also https://mentalhealthcop.wordpress.com/2013/09/20/place-to-wh... which shows the same ambiguity exists in the UK.

wang_li9y ago· 1 in thread

I have a custom X-TOS header in all of my http/https requests that states that the company who owns rights to the website my request is sent to and replies with data owes me:

1. Total privacy, they will not track me activity on their website, including any logs.

2. They will send me a cashier's check for $1,000 for each byte that they send to me.

3. They will provide me with Mana Sakura's cell phone number.

I'm still waiting for checks and a phone number.

cookiecaperOP9y ago

If you can convince a judge that this represents an enforceable contract, as has been done and established with clickwrap, then you should be able to get what you're owed. :)

jessaustin9y ago

Surely there are better ways to enforce IP restrictions than this tortured analogy of networked computing to physical location?

j / k navigate · click thread line to collapse