News for hackers. Stuff that matters.
Re:Taking action against scraping for hire by closewith on Thursday July 07, 2022 @09:54AM (#32014133)
Most law suits aren't due to breaches of the law, but breaches of contract. Whether terms of service constitute an enforceable contact is another matter.
Re:Taking action against scraping for hire by adamsmith143 on Thursday July 07, 2022 @10:19AM (#32014447)
ToS have been around for decades, surely this question is settled by now?
Re:Taking action against scraping for hire by marlowe221 on Thursday July 07, 2022 @10:32AM (#32014614)
Former attorney turned software developer here!

Nope, it's not a settled question in the way that I think you mean. Each ToS is different so each would be subject to individual legal analysis in court on its own terms.

Questions would include whether the ToS is unconscionable, whether the terms violate laws of the locality/nation, and so forth.

It's the same with traditional contracts - the fact that contracts have been around for hundreds (maybe thousands) of years doesn't mean much if you and I create a brand new one between us. Our contract's specific terms (and events/actions between us as a result) would be the issue in court.

Re:Taking action against scraping for hire by kaivi on Thursday July 07, 2022 @01:29PM (#32016857)
Why can't FB simply include a clause like "No kind of automated scraping is allowed, except for search engines in robots.txt"? This would save them so much time in court, arguing over the use of fake accounts which should really be irrelevant.
Re:Taking action against scraping for hire by closewith on Thursday July 07, 2022 @02:00PM (#32017248)
It's not clear that clause would be enforceable. Scraping has been found to be lawful in many jurisdictions, including the US, even without the consent of the host.
Re:Taking action against scraping for hire by adamsmith143 on Thursday July 07, 2022 @10:49AM (#32014822)
So even the general question of "Whether terms of service constitute an enforceable contract" depends on each individual ToS?
Re:Taking action against scraping for hire by marlowe221 on Thursday July 07, 2022 @11:40AM (#32015461)
Congress or a state legislature could pass a law that says "No terms of service are ever enforceable" but to my knowledge no one has done that.

So, under the current state of the law whether or not a contract is enforceable depends entirely on what the terms in that specific contract are.

Unfortunately, this is yet another instance where the law has failed to keep up with technology. Contract laws (at least in the USA) date back long before anyone ever dreamed up the idea of a EULA or ToS. Our laws contemplate two or more parties with roughly equal bargaining power sitting down and hashing things out, and go from there.

Laws based on that assumption are a pretty poor fit for a world filled with EULAs and ToS but it's what we are stuck with at the moment.

Re:Taking action against scraping for hire by jhoelzel on Thursday July 07, 2022 @10:16AM (#32014399)
if a bot creates the account, who breaches the contract?
Re:Taking action against scraping for hire by sneak on Thursday July 07, 2022 @10:16AM (#32014411)
The person who ran the bot. Programs do not have agency, they are just tools.

That's like saying "If the gun fires the bullet, who is liable for murder?" It's a silly question.

Re:Taking action against scraping for hire by CSMastermind on Thursday July 07, 2022 @10:29AM (#32014564)
> That's like saying "If the gun fires the bullet, who is liable for murder?" It's a silly question.

I don't know I've seen several people unironically argue that it should be the gun's manufacturer.

Re:Taking action against scraping for hire by lesuorac on Thursday July 07, 2022 @10:46AM (#32014779)
Probably should also add "successfully", there's a reason NYPD had/has guns that require 12 pounds of force to pull the trigger (instead of a normal ~5 lbs).
Re:Taking action against scraping for hire by bee_rider on Thursday July 07, 2022 @11:36AM (#32015419)
Software that exclusively has illegitimate uses has been shut down. Whether we agree that it is a good argument or not, it is definitely an argument people have made (that some types of guns are mainly designed to hurt people).

With software of course it is a little complicated because:

* it can be produced really easily in a distributed fashion over the internet by anonymous people in many jurisdictions, so there isn't always an obvious company or entity to sue

* most automation tools can be repurposed for malicious use (nobody would sue John Deere because their tractors can be armored and turned into pseudo-tank things)