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Site Says 'Go Away!'; Federal Court Says No
CaptainEbo writes "Michael Snow was the webmaster of Stop Corporate Extortion, a private support group website for 'individuals who have been, are being, or will be sued by any Corporate entity.' In order to access his site, users were required to register a username and password, and agree to a statement saying they were not associated with DirecTV, Inc. Several defendants in suits brought by DirecTV would discuss their cases on Snow's site. When DirecTV's employees and lawyers ignored Snow's user agreement and accessed his site anyway, Snow sued, claiming they violated the Stored Communications Act (SCA) by accessing his site without authorization. In an unanimous opinion, the Eleventh Circuit rejected Snow's suit."
You really can't expect someone to sit there and interview everyone who wants to become a member of this sort of thing... it just isn't really possible. Just imagine if there was some guy who had to sit there and interview each new member of slashdot. No way would that ever work.
What makes something readily accessible to the general public? According to the article they didn't even give an example (apart from that "hint" which I just went over). That is just way too vague.
It leaves them exactly where they were: Here.
Reread the parent post - they sued under the SCA, not contract law. Any precedent and case law applies only to the provisions of law invoked by the plaintiff.
O lord, bless this thy holy hand grenade, that with it thou mayest blow thine enemies to tiny bits, in thy mercy.
The SCA is a federal statute, passed by Congress & signed by the President. It applies only when the conditions specifically described in the statute are met. In this case, those conditions are access of stored communications "without authorization". The text of the statute also contains an exception, which says that even if stored communications were accessed w/o authorization, the statute does not apply if those communications are "readily acessible to the general public." According to the Eleventh Circuit, merely requiring the user to click a button saying they agree that they are not something does not prevent a site from being "readily accessible to the general public." Contract law is hundreds of years old, based on the English common law, and modified somewhat by state legislatures. Under the common law of contracts, there are three elements to a contract: 1) An offer 2) An acceptance 3) Consideration (meaning that both parties agree to give something up) Because contract law is governed by state law, it is rarely raised in federal courts, such as the Eleventh Circuit (there are exceptions, under something called "diversity jurisdiction" or "supplimental jurisdiction" but I imagine the readers of Slashdot don't want me to give them an entire semester's worth of Civil Procedure). When a contract claim is raised in the proper court, however, a contract will generally be deemed to exist if the three elements mentioned above exist.
"It seems more and more like we have a double standard when it comes to "computer trespass" laws."
It's not limited to computer trespass and it's not "more and more". We have always had two different legal systems in the US. One for the rich, one for everybody else.
American legal system is the best legal system money can buy.
evil is as evil does
Actually, the closest physical analogue to this is a bunch of people having a conversation in a crowded restaurant becoming offended that they can be overheard at the adjacent table by the people they're talking about. You need a bit more than a promise that you're not the sort of person the site is trying to keep out to make a behind-closed-doors analogue valid.
And the brethren went away edified.
Of course there is consideration in EULAs. It doesn't take a hell of a lot for there to be consideration (think of the $1 contracts that are upheld). The money you pay is your consideration. The software (or access rights thereto) they provide is theirs. All it means is giving up something (ANYTHING!) you din't have to give up.
"Consideration" does not mean "carefully considered all the ramifications" which might be what you be getting at. I.e. a policy consideration that the parties to a EULA are so unequal in bargaining power that enforcnig the contract "offends the conscience".
Q:How many libertarians does it take to stop a Panzer division? A:None. Obviously market forces will take care of it.
Because he wanted to nail them with an SCA violation. At law? Nominal damages at best. At equity would have been....an injunction?! Yeah, because he wouldn't have been able to get that with with an IP blacklist. No court is going to award any serious damages under contract law...
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
...the problem is Snow sued under the SCA rather than traditional contract theory. Of course, they violated their "contract" -- so the court would award him WHAT at best? An injunction? Because he couldn't have set up an IP blacklist to get that already? Seriously, the difference here is between contract law and a form of "public access" (public accomodations) law. If you are a private club with no serious barriers to entry, you cannot claim to be a private club, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966).
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
If you are a private entity you must have selectivity criteria. If you do not have actual selectivity criteria, you are open to the public, and therefore a public accomodation. Basically this ruling is that a nominal selectivity criteria (i.e. voluntary self selection) is NOT one. This is nothing new at all.
See e.g. Desnick v ABC 44 F.3d 1345; Food Lion v Capital Cities, 194 F3d 505, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966), Uston v Resorts Internation 445 A2d 370; Dale v BSA 734 A2d 1196 rev sub nom BSA v Dale 530 US 640.
But see/but CF National Organization of Women v Little League Basketball, 338 A2d 198; and ESPECIALLY see Kiwanis Int'l v. Ridegewood Kiwanis Club, 806 F2d 468.
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
The crucial difference being that race is a protected class in anti-discrimination legislation, while employer is not.
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
Step-Saver and Gateway hold otherwise. You can't EULA around the warantee of merchantability (or fitness for purpose) but otherwise, you're golden. I'm sure Todd Rakoff would agree with you, but not everyone else would. (In Easterbrook's court, you'd be laughed at....) Modern contracts doctrine has done away with many instances of consideration, one of the few places where it is required is to form binding (i.e. non-revocable) option contracts. There are plenty of places where "consideration" isn't really needed.... [Unilateral contracts, promissory estoppel, the UCC....]
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
IANAL... He means like when squatters take over a building. If they stay there long enough with no arguments or reaction from the real owner, the squatters might be able to make an argument that they are the owners or resident... or something like that. And the owner would then have trouble removing them if he later wanted to do something with the property. If the owner had placed 'no trespassing' signs, he would have a good argument to kick the squatters out. When someone hijacks a property.
-- I ignore anonymous replies to my comments and postings.
What jurisdictions can you think of that allow you to shoot trespassers? I believe you may be mistaken. Shooting another person (intentionally) is assault (best case scenario) to murder (or attempted murder). Period. "Reasonable fear for your life" is an affirmative *defense*. If you can provide something to back up these mysterious jurisdictions in which you can shoot people for civil trespass in which you have no fear of bodily harm, I'd really love to see them. [Again: The general rule is that a reasonable fear of bodily harm constitutes an affirmative defense; not carte blanche.]
s ession.htm or http://www.lectlaw.com/files/lat06.htm
Re: AP, check out http://real-estate-law.freeadvice.com/adverse_pos
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
The GPL is a copyright licence, not a contract. No consideration is required, equally, you never have to agree to its terms - negotiate different terms with the copyright holder, or don't copy the software.
"How about if you pirate software" - then there are penalties under copyright law. Irrespective of the EULA.
See Chapter 9 of the Texas Penal Code, particularly Sec. 9.42, "Deadly Force to Protect Property" pdf
Trespassing isn't enough to justify deadly force, but it's easy to see how those stories get started.
Well, at least the SCA wouldn't prevent you.
I have. And believe it or not, they aren't so terrible. Everyone screams "bloody murder" about the "Hot coffee" McDonalds case; the coffee was near 180 degrees F and caused burns within seconds of touching the woman's skin. Had she actually drank the coffee rather than spilled it, she'd have had permanent scarring on her esophagus and tongue and probably would have lost the ability to speak. She asked Mcdonalds to pay her medical bills ($47k) and they refused, at which point she sued. The Mcdonalds people *knew* their coffee was too hot, and the temperature was kept as a business decision because lower temperature coffee must be discarded more often (as it goes bad). People that don't know the law, combined with the media, make the case out to be this "tort tragedy" -- once in the courtroom, I have serious faith in jurors.
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
There's both strategy and tactics in law, and in this case the two were mis-matched.
How can you even remotely consider that a landowner actually OWNS that land if he does not have the simple right of preventing others from taking its resources without permission?
Because in reality no country in world allows you to 'own' anything; you'll just have different kinds of control for such property.
And by habit you'll just define the word 'own' to match the degree of control you're used to.
Historically England was crowded place, every good piece of land effectively used. Hence the strict rules for control, with harsh penalties (e.g. ban on hunting "King's deers"). The attitude in time carried over to the States.
Now compare to Finland, with used to have nothing but vast forests, with no powerful local lords. Thus the tradition of freeish access, common to other Nordic countries with similar history.
See a short introduction about "Everyman's Right" by Finnish Ministry of Environment: http://www.ymparisto.fi/default.asp?contentid=1045 23&lan=EN
lav : Not for ourselves but for the world we have been born into.
I'm of the belief that EULAs are considered contracts. . .
.just what law gives EULAs force?
If and when actual legally contractual terms are involved in the EULA document.
. .
Copyright law. The DMCA. The law as it exists. EULAs are a license. The license is required because the law restricts your rights. The rights holder grants you those rights, under license, as is his right. No contractual obligation need be invoked. It's simply a question of permission.
Contractual obligations only need be invoked when consideration is demanded for license rights. The contract spells out those obligations. These may be bundled into the document granting license, but the license and the contract are not the same thing, despite sharing a document.
License is about rights. Contract is about obligation. The average EULA says nothing about the obligations of either the licensee or the licensor. In fact, most of the commercial variety only mention obligations in the context of denying that the licensor has any! That is not enforcable contract.
What law makes the copyright on a book enforcable, even though no license is required for you to possess, read, burn, eat, lend or sell it?
What gives the RIAA the right prosecute copyright violations when no contract or license is involved?
Copyright law. The Law. The fact that said law innately forbids you to perform certain actions with regard to that book; unless you have license from the rights holder.
If you violate The Law you may be prosecuted.
Do not confuse the lack of an enforcable contract with the lack of enforcability of The Law.
The correct button label on most EULAs would be not "I Accept," but "I Understand."
Except that most EULAs want to leave you with the impression that you really have "signed" away your right to redress of grievance, or entered into an obligation to have your grievance heard in Botswana.
KFG
I've heard that coffee begins to deteriorate after more than 15 minutes and that it is best served immediately after brewing at close to 200 degrees F. I'm not sure how anyone knows this, though, since it must be difficult to determine the flavor with your tastebuds burned off. In fact, I've burned my tongue numerous times using your ingenious sip test to check the temperature of my coffee.
Ideology: A tool used primarily to avoid the bother of thinking.