20 ms·

Not being combative, just genuinely curious, but how is this not legal? If it's part of their ToS it seems like it would be enforcable.

by torme 16y ago

alextgordon 16y ago
You can put "Users may not breathe while using this website" in your ToS but that doesn't make it enforceable. A ToS has to have some basis in law.
- torme 16y ago
  Ok... again, not trying to be combative but: a) This still doesn't really answer my question. b) Would it be illegal to put up a website and say that essentially no one can use it? Aside from some exceptions like discrimination, ToS's define how you can use a tool, which is exactly what they were doing. Is there some law stating that if you host a website, you must allow users to link to it in any way they like?
  - pbhjpbhj 16y ago
    >Is there some law stating that if you host a website, you must allow users to link to it in any way they like? None that I know of specifically - however putting a website up is an implicit contract allowing normal web usage (for credits: now define normal and enforce that contract).
    - kragen 16y ago
      I don't think you have to bring implicit contracts into it. If I walk down the street and someone's shadow falls on me, I simply don't have a cause of action against them. If someone looks at me, I don't have a cause of action against them. If someone calls my name on the street, I don't have a cause of action against them. (Barring extraordinary circumstances, of course.) You don't need to invent theories about how I'm entering into an implicit contract with the whole world by going out on the street, among whose terms are that people may allow their shadows to fall on me and look at me. It's simply that no tort is created by looking at a person or linking to a web page. There's no law granting exclusive rights in URLs unless they're copyrightable.
      - pbhjpbhj 16y ago
        I like your example but I don't think that a web page is like a person in public space. As you say their is no tort generally in approaching someone in the street but it is possible that a legal barrier has been erected and so an uninformed observer can't assume that no infringing/illegal activity is being undertaken (think exclusion orders, stalker laws, anti-social behaviour orders and the like; I think these are reasonably common across jurisdictions). In the case of a website a copyright to that site is automatically created when the work itself is created - this is true in the vast majority of countries at least. Being able to view the site by making a temporary copy in your computer's cache is not clearly non-infringing. Someone aiding the creation of an infringing work can be acting tortuously in "contributory infringement" and hence linking to a website could, strictly, be tortuous. Applying common sense by assuming an implicit contract avoids the need to concern oneself with such apparent infringing actions.
        kragen 16y ago
        > Being able to view the site by making a temporary copy in your computer's cache is not clearly non-infringing. Someone aiding the creation of an infringing work can be acting tortuously in "contributory infringement" and hence linking to a website could, strictly, be tortuous. Hmm, I hadn't thought about it from that point of view, but I think you're right. It seems like clear evidence that your copyright law (I assume you're in the US) has gone mad and needs to be put to sleep.
        pbhjpbhj 16y ago
        >"I assume you're in the US" UK actually at present - US has some things better than us and some worse. It all could do with a good going over though!
  - mcherm 16y ago
    There is a serious legal question about whether or not a ToS for a website is enforceable. Probably, if ANY ToS is enforceable then this one is. But it's an open question. The argument against enforceability goes something like this: TOS enforcement stems from contract law. A principle of contract law says that a contract is binding on both parties if they agreed to it, but there must be SOME benefit to each party. A TOS between a website and its users clearly meets this threshold, but in this case agiletortoise didn't gain any benefit from the website -- he simply wrote a program that directed the user's browser to go there. That being said, the best solution is the one that agiletortoise used: simply direct people to someplace less hostile, like Google, Bing, or Wikipedia, instead of Wolfram Alpha. Wolfram Alpha loses, everyone else wins.
    - kenjackson 16y ago
      but in this case agiletortoise didn't gain any benefit from the website -- he simply wrote a program that directed the user's browser to go there. I don't get that. Doesn't agiletortoise get benefit when their users get benefit?
      - agiletortoise 16y ago
        Yes, I got a benefit. There were users that like the Wolfram links and will be sorry they are gone. As I said in my post, I'm fine with it. I think Wolfram's Terms are OK. I think it's a bit tenuous only in that if they were really serious about it, they could enforce that requirement in their code. They are not doing that, because it's to their benefit to allow some linking -- they are just reserving the right to selective enforce those terms, which seems a bit sleazy to me. - agiletortoise
        kenjackson 16y ago
        I don't know your product, but if your link takes them to the actual Alpha page, and they can interact with the Alpha page, you should make the argument that you're bringing them customers. I think if they're reasonable, they may actually appreciate the traffic in that case.
  - TillE 16y ago
    > Would it be illegal to put up a website > Is there some law stating that if you host a website You're looking at this backwards. The TOS is not a contract that automatically applies to everyone; I don't have to agree to it if I link to your site. Generally, if you want to prevent people from using your website in a certain way (that's not blatant abuse/hacking/etc), you're going to have to resort to technical solutions, because your only legal recourse is copyright law, which may or may not apply.
- kbutler 16y ago
  > You can put "Users may not breathe while using this website" in your ToS but that doesn't make it enforceable. A ToS has to have some basis in law. You seem to be confusing copyright law with contract law. ToS are generally considered part of contract law, under which anything that is not illegal can be part of the contract, and the parties agreeing to the contract would be obligated to comply. There are exceptions to enforceability (like contracts of adhesion and unconscionable terms, see http://en.wikipedia.org/wiki/Standard_form_contract http://en.wikipedia.org/wiki/Standard_form_contract) that may limit enforceability of a contract or terms of use, but "basis in law" is not necessarily required. In contrast, copyrights (and patents, and trademarks) involve certain rights granted by law and explicit and unstated limitations to those rights. Owners of copyrights/patents/trademarks may make assertions that go beyond their rights and are thus not enforceable as they have no basis in law. In the Wolfram|Alpha case, then, the questions involve (a) does linking to a site constitute acceptance of the terms of use? (b) does using the site constitute acceptance of the ToU? (c) are the terms actually an enforceable contract (not illusory/unconscionable).
  - mentat 16y ago
    It would seem that the person violating the ToU is the user of the app, not the application writer. Using Apple to enforce this seems to be quite a stretch. If you want to say creating a deep link is a copyright violation, then any browser which allows bookmarking is in violation?
    - cma 16y ago
      In the US you don't have to sign a contract or be part of an agreement to be bound by it. For example, if an MS exec has a noncompete and Google hires him, knowing about the contract, but not being party to it, Google can still be sued.
      - Nick_C 16y ago
        I have trouble believing this is the case. Perhaps only in a very limited set of circumstances. Can you give us some references? The reason I doubt it is that it opens a huge can of worms about how I could entrap a third-party into a contract that they haven't accepted and haven't exchanged consideration for.

Not being combative, just genuinely curious, but how is this not legal? If it's part of their ToS it seems like it would be enforcable.

by torme 16y ago

Not being combative, just genuinely curious, but how is this not legal? If it's part of their ToS it seems like it would be enforcable.

alextgordon 16y ago

You can put "Users may not breathe while using this website" in your ToS but that doesn't make it enforceable. A ToS has to have some basis in law.

torme 16y ago
Ok... again, not trying to be combative but: a) This still doesn't really answer my question. b) Would it be illegal to put up a website and say that essentially no one can use it? Aside from some exceptions like discrimination, ToS's define how you can use a tool, which is exactly what they were doing. Is there some law stating that if you host a website, you must allow users to link to it in any way they like?
- pbhjpbhj 16y ago
  >Is there some law stating that if you host a website, you must allow users to link to it in any way they like? None that I know of specifically - however putting a website up is an implicit contract allowing normal web usage (for credits: now define normal and enforce that contract).
  - kragen 16y ago
    I don't think you have to bring implicit contracts into it. If I walk down the street and someone's shadow falls on me, I simply don't have a cause of action against them. If someone looks at me, I don't have a cause of action against them. If someone calls my name on the street, I don't have a cause of action against them. (Barring extraordinary circumstances, of course.) You don't need to invent theories about how I'm entering into an implicit contract with the whole world by going out on the street, among whose terms are that people may allow their shadows to fall on me and look at me. It's simply that no tort is created by looking at a person or linking to a web page. There's no law granting exclusive rights in URLs unless they're copyrightable.
    - pbhjpbhj 16y ago
      I like your example but I don't think that a web page is like a person in public space. As you say their is no tort generally in approaching someone in the street but it is possible that a legal barrier has been erected and so an uninformed observer can't assume that no infringing/illegal activity is being undertaken (think exclusion orders, stalker laws, anti-social behaviour orders and the like; I think these are reasonably common across jurisdictions). In the case of a website a copyright to that site is automatically created when the work itself is created - this is true in the vast majority of countries at least. Being able to view the site by making a temporary copy in your computer's cache is not clearly non-infringing. Someone aiding the creation of an infringing work can be acting tortuously in "contributory infringement" and hence linking to a website could, strictly, be tortuous. Applying common sense by assuming an implicit contract avoids the need to concern oneself with such apparent infringing actions.
      - kragen 16y ago
        > Being able to view the site by making a temporary copy in your computer's cache is not clearly non-infringing. Someone aiding the creation of an infringing work can be acting tortuously in "contributory infringement" and hence linking to a website could, strictly, be tortuous. Hmm, I hadn't thought about it from that point of view, but I think you're right. It seems like clear evidence that your copyright law (I assume you're in the US) has gone mad and needs to be put to sleep.
        pbhjpbhj 16y ago
        >"I assume you're in the US" UK actually at present - US has some things better than us and some worse. It all could do with a good going over though!
- mcherm 16y ago
  There is a serious legal question about whether or not a ToS for a website is enforceable. Probably, if ANY ToS is enforceable then this one is. But it's an open question. The argument against enforceability goes something like this: TOS enforcement stems from contract law. A principle of contract law says that a contract is binding on both parties if they agreed to it, but there must be SOME benefit to each party. A TOS between a website and its users clearly meets this threshold, but in this case agiletortoise didn't gain any benefit from the website -- he simply wrote a program that directed the user's browser to go there. That being said, the best solution is the one that agiletortoise used: simply direct people to someplace less hostile, like Google, Bing, or Wikipedia, instead of Wolfram Alpha. Wolfram Alpha loses, everyone else wins.
  - kenjackson 16y ago
    but in this case agiletortoise didn't gain any benefit from the website -- he simply wrote a program that directed the user's browser to go there. I don't get that. Doesn't agiletortoise get benefit when their users get benefit?
    - agiletortoise 16y ago
      Yes, I got a benefit. There were users that like the Wolfram links and will be sorry they are gone. As I said in my post, I'm fine with it. I think Wolfram's Terms are OK. I think it's a bit tenuous only in that if they were really serious about it, they could enforce that requirement in their code. They are not doing that, because it's to their benefit to allow some linking -- they are just reserving the right to selective enforce those terms, which seems a bit sleazy to me. - agiletortoise
      - kenjackson 16y ago
        I don't know your product, but if your link takes them to the actual Alpha page, and they can interact with the Alpha page, you should make the argument that you're bringing them customers. I think if they're reasonable, they may actually appreciate the traffic in that case.
- TillE 16y ago
  > Would it be illegal to put up a website > Is there some law stating that if you host a website You're looking at this backwards. The TOS is not a contract that automatically applies to everyone; I don't have to agree to it if I link to your site. Generally, if you want to prevent people from using your website in a certain way (that's not blatant abuse/hacking/etc), you're going to have to resort to technical solutions, because your only legal recourse is copyright law, which may or may not apply.
kbutler 16y ago
> You can put "Users may not breathe while using this website" in your ToS but that doesn't make it enforceable. A ToS has to have some basis in law. You seem to be confusing copyright law with contract law. ToS are generally considered part of contract law, under which anything that is not illegal can be part of the contract, and the parties agreeing to the contract would be obligated to comply. There are exceptions to enforceability (like contracts of adhesion and unconscionable terms, see http://en.wikipedia.org/wiki/Standard_form_contract http://en.wikipedia.org/wiki/Standard_form_contract) that may limit enforceability of a contract or terms of use, but "basis in law" is not necessarily required. In contrast, copyrights (and patents, and trademarks) involve certain rights granted by law and explicit and unstated limitations to those rights. Owners of copyrights/patents/trademarks may make assertions that go beyond their rights and are thus not enforceable as they have no basis in law. In the Wolfram|Alpha case, then, the questions involve (a) does linking to a site constitute acceptance of the terms of use? (b) does using the site constitute acceptance of the ToU? (c) are the terms actually an enforceable contract (not illusory/unconscionable).
- mentat 16y ago
  It would seem that the person violating the ToU is the user of the app, not the application writer. Using Apple to enforce this seems to be quite a stretch. If you want to say creating a deep link is a copyright violation, then any browser which allows bookmarking is in violation?
  - cma 16y ago
    In the US you don't have to sign a contract or be part of an agreement to be bound by it. For example, if an MS exec has a noncompete and Google hires him, knowing about the contract, but not being party to it, Google can still be sued.
    - Nick_C 16y ago
      I have trouble believing this is the case. Perhaps only in a very limited set of circumstances. Can you give us some references? The reason I doubt it is that it opens a huge can of worms about how I could entrap a third-party into a contract that they haven't accepted and haven't exchanged consideration for.