While it is clear that hacker culture embraces putting things from numerous sources together, in this case the Google Maps elevation API with crime data, it's one thing to make a cool presentation and another to make a cool presentation derived from someone else's work against their explicit wishes, expressed in the terms.
The use of software implies (by necessity or otherwise) that you wish to make/create/analyze/do-X with the software, and by using it you've accepted the fact that you will do-X, but within the terms.
It's a funny world we live in ;)
Those are really the only two options, no matter how much we wish people would be honorable.
I think it's reasonable to assume that when the service cannot be accessed before the accessor clicks "agree", and the accessor clicks "agree", that constitutes a valid contractual agreement. It's no more silly than mailing in a credit card application and being bound by those terms.
The fundamental attributes are present. There is a contract and you can agree to it or not. Your interaction with the company is viewing the terms the lawyers wrote and agreeing to them or leaving the website.
There is no signature, there is no proof of identity of the signing party (copy of personal ID, witness, ...). Usually no confirmation that other side also accepted it. No copy of ToS received after "accepting". We all know that it could be that, for example, my 4yo child clicked on it when I went to the toilet after reading first few paragraphs of ToS, and now I'm somehow bound to it? Also, it happens very frequently that you "accept" some ToS, and after two years you find on some forum that Google, or PayPal just changed their ToS without sending you the updated copy for acceptance.
Sorry, but too many things that are really different between ToS and a real acceptance of a Contract.
It seems like you are angered that you have to enter into a contract before using software, and you would prefer to just click "accept" and have that magically not be interpreted as you agreeing to the terms. "I'll use it but I don't accept the terms". I'd like that too, but I'm afraid that's not how it works.
I could as well write whatever ToS on my homepage with "accept" and "not accept" link with whatever terms, and then wait for Google bot to "accept" my terms. Do you think Google would be bound by their "acceptance" in the same way.
It's not like I was using my digital signature or whatever, it's just that someone clicked somewhere.
The burden of proof here is on the "vendor" or software provider. They need to prove that I accepted their terms, not the other way round. That's why many free services require credit card, copy of the ID and physical signature as a proof of identity. The fact that Google decided that this might be too expensive for them to enforce, and that is cheaper to just not do it is their choice.
A contract must consist of:
1. A "meeting of the minds." This means both sides come to a common understanding of what's in the contract. Basically, it means there's an offer by one side and acceptance by the other without changes.
2. Intention to be legally bound. Basically, this means that the context of a contract matters. It seems to boil down to commercial agreements generally being enforceable while others (e.g. promising money to family) are not.
3. Consideration. This is some sort of exchange of value. In short, a contract cannot be one-way. This is why you sometimes see e.g. things being sold for $1 rather than being just plain given away for free.
The way I see it, there are serious problems for click-through agreements for both 1 and 3. 2 is not a big deal, as despite the name, it doesn't appear to actually apply to the case where you click Agree without the intention to follow the contract.
One problem with #1 is that essentially nobody ever reads these things. In general, "I didn't read the contract I signed" is not an excuse, of course. However, I think this does (or should) change when everybody doesn't read it, because it means that the other party knows, or should know with reasonable certainty, that you're unaware of the contents. Normally you presume that each party is aware of the contents of the contract, but you can't do that with click-through agreements since it's widely-known that they go unread. A contract which I don't read and which you are well aware I didn't read should not be enforceable. For high-value, important contracts like buying a house, a person familiar with the contract will go over each page with you and have you initial it to affirm that you read it, precisely to avoid this problem. The combination of widespread failure to read the contracts and a complete lack of effort to ensure that you, personally read the one in question means that, IMO, there is no meeting of the minds.
Another problem with #1 is that there is either no opportunity to propose changes, or the other side never notices or reviews them. With a normal contract, I can cross out clauses, add or change wording, etc., at which point the other party can accept or reject my changes, or propose further changes. Where this really runs into trouble, I think, is when you edit the contract locally before clicking Agree. This is generally trivial using a DOM inspector for any click-through agreement found on the web. Imagine I take the ToS in question here and alter it to read, "In exchange for mikeash's use of the Google API, Google promises to pay mikeash the sum of ten million dollars." Then I click Agree. Should Google be bound by this agreement? I imagine you immediately and strongly say "No!" But why should I be bound by the original while they are not bound by the alteration? In a normal contractual setting, they have the opportunity to say yes or no to my proposed changes. They will, of course, say no. In this setting, they don't say no! They simply grant me access to their service after I "Agree" to the altered contract. Does this not imply acceptance on their part? If not, what's the difference between their situation and mine?
Finally, #3 seems to completely destroy the concept of any click-through agreement that isn't part of some sort of payment process. Terms of service presented as part of a checkout process would seem to be fine in this respect, but when presented as part of a free web site, it doesn't seem to work. They give you access in exchange for... nothing. Similarly, click-through software licenses seem to fail here because they show up after the money has been exchanged. I pay for a copy of software which I obtain, and only later am I presented with the EULA. Since the money and product already changed hands, there's no further consideration, and so the EULA should not have force.
That's my thinking. I welcome dissenting opinions.
But I think there's a very clear distinction between a simple agreement with the original and with altering the DOM. If you are clever enough to alter the DOM you definitely know that the alterations are not going to be sent back to the server. You also know that agreeing will let you use the service because the server will think you agreed to the original. That seems like a clear-cut case of fraud to me. I don't see why an agreement to the original contract is invalidated because you weren't offered the opportunity to make a counter-offer (I agree that's a shitty situation, though). That's why I think it's like a contract in the mail; you get an offer and you can agree to that or not. You can make a counter-offer but it will be binned.
Consideration isn't solely concerned with monetary purchases, is it? I imagine they can construe your incoming data as valuable. It would be interesting to know if sites like Reddit can claim user interaction has inherent value for the site and for the users. I guess the EULA would be granting you license to use the software, but would not give any additional value to the developer so consideration does seem to invalidate that.
You're probably right that a ToS is going to be hard to uphold in civil court.
Anyway, thank you for elaborating, I'm glad to get a better understanding of your perspective and contract law.
Yeah, they'll probably just toss your counter-offer. But the point is that you can make it. You can take their contract, alter it, sign the altered copy, and send it back, and then they can accept or refuse. The important point here is that you are not considered to have agreed to the original because you signed an altered copy.
A more thorough way to do this electronically would be to modify the DOM, save the modified agreement, click Agree to sign your end, and then e-mail the modified agreement back to the originator and let them know what's going on. Of course, their automated systems have given you access in the meantime, but that's hardly your fault.
I don't really understand how making a modification you know won't be sent back to the server is "fraud", but sending the user an agreement you know won't be read is "not fraud". Seems like either we base both scenarios on what people should do (read the original/modified agreement), or on what people actually do (not read anything), but not base one scenario on one and one scenario on the other.
You say you don't see why an agreement to the original is invalidated because you couldn't make a counter-offer, but that's how contracts work. Negotiation is inherent to the process. Big companies are trying to hide that with form contracts that everyone is expected to sign as-is, but it's still supposed to be present.
I rarely even know how to look up terms of an API, or that there is an API. If I know the name of the API, I can look for "Google Foo API", but that name isn't always obvious. If I just see a URL with an obvious schema, and I change the HTTP GET parameters to retrieve different stuff, am I allowed to use that in, say, a small-scale art project, or not? The usual internet default is that public URLs are implicitly giving blanket permission to retrieve them, except that retrieval by spiders should abide by robots.txt. Google itself makes heavy use of this ok-to-retrieve default assumption.
If I go to http://maps.google.com there is no license presented to me as a condition of using the service. I can however look for fine print and seek out the link "Terms of Service" of my own accord, at which point I get this: http://www.google.com/intl/en_ALL/help/terms_maps.html
Those terms specifically forbid several things I'm definitely not doing (mass-downloading data, using it for turn-by-turn navigation, etc.), so my first read of it makes it sound like grabbing Maps content in my art project is okay. But then I'm not a lawyer, so maybe it isn't okay.
The JavaScript Maps API V3 is a free service, available for any web site that is free to consumers. Please see the terms of use for more information. ...with a link to the full TOS for the API: https://developers.google.com/maps/terms
Playing dumb isn't an excuse. Can I stop paying my morgtage on my house because the 40 pages of documents I signed I don't 100% understand? No.
If you want to enter a legally binding contract that you don't understand you hire someone to help you do so, or face the consequences if you signed something you were not smart enough to be signing.
That's good advice, but I didn't sign anything here.
I have in the past signed contracts with companies agreeing to use services or software in certain ways (generally pre-release stuff under NDA), and in those cases I do indeed read the contract carefully before signing it, sometimes redlining parts of it before they countersign, and I abide by our mutually agreed result. If I don't feel I understand it, I refuse to sign, or ask for clarification.
However, to my knowledge, I have never signed a contract with Google. If they had asked me to do so, I would certainly have refused if I didn't understand the terms. But I do not believe they have even asked me to. All I have done is visit their website, just like they have visited my website.
I have a ToS on my own site, but as far as I can tell, Google just accesses my site however it wants and does not read it (they definitely don't pay me for the premium tier, despite exceeding the stated free access limits).
To use their API you will need to agree to their TOS
That webpage serves map tiles over HTTP, without asking me to agree to a contract first. I take it that I may therefore access the map tiles over HTTP? Obviously I assume I cannot redistribute them, as they're copyrighted. And it is good netiquette to observe robots.txt for bulk/crawl access. But beyond that I don't believe me visiting their page constitutes me "signing" a contract with Google, any more than Google visiting my page constitutes them "signing" a contract with me.
Perhaps there is some other API with nice JSON stuff and OAuth or whatever, but that's not what I'm talking about. I'm just doing HTTP GET requests for map tile URLs.
https://www.google.com/intl/en_us/help/terms_maps.html
and the first link there is the Google Universal Terms of Service that you also agree to bind yourself to:
It seems very similar in the sense to which Google "agreed" to pay me money if they spider my page more than N times/day, which is what my own website's terms say in the footer. Yet I've never received a check. Is Google playing dumb and claiming they never read the terms, so can't be held liable?
If so, looking at whatever data's on your wire (browsers are subclass of user-agents for a reason), and then doing similar requests by example does not make you sign some agreement with Google, right?
Nope.
More to the point -- regardless of the specifics of the law, the persistent desire of this forum to correlate legality to moral correctness is somewhat disturbing. What does it even mean to form an agreement with "Google"? Even assuming the historical basis of contract law, what constitutes "consideration" in an agreement like this?
Personally... I don't see any ethical reason to perform negotiations with organizations that have become as large and as disconnected as Google. I speak to employee after employee and they all speak of Google's commitment to privacy, to openness, to not doing evil; but the actions of Google at every turn display otherwise. A man can make an agreement with another man or perhaps even with an organization that is capable of coherent action, but Google is neither. No "agreement" with Google is valid if only because Google is not a collective that one can actually negotiate with, never mind that it's proven time and time again willing to discard agreements and promises in the name of profit.
Finally, the statement is often made that if one chooses not to consider Google as an entity with which one can negotiate, one should simply not utilize their resources. Why? Because we can't negotiate with a mountain, should we fail to mine the minerals therein? Google is a mound of computational power and data with no remaining hold on human morality or ethics -- anything we can retrieve from there is salvage. Take it and use for the betterment of humanity, because they certainly will not be doing so.
Playing dumb isn't an excuse; But if one were to juxtapose the consequences of ignoring google's wishes and not paying ones mortgage, that would seem ridiculous.
And is accessing a url is a legally binding contract now, especially when nothing is signed or acknowledged by one or both parties when the url is accessed?
This is in no way comparable to using a companies API.
And like blog posts written by people on various subjects, one might click the links, find something of value from accessing the link and decide to access it in an automated fashion without caring (Oh, it has api in the url! * doesn't think twice about it *) to bother to look for anything else because as far as they are concerned, they're getting what they need right there. Now if they run into rate limits and get blocked for x amount of time, its tough luck. But if one doesn't run into rate limits, and continue to uses such a link, should they expect the 2 am wake up call or expect to get kicked out of their home or face significant hardships in life because of it?
[0] http://maps.googleapis.com/maps/api/geocode/json?sensor=fals...
Now If it is 'malicious' enough for google to recognize the access, and trace down the source to get the DOJ to throw the book at the person/company, that is a different story that we have seen before…
You only have to read as far as the beginning of the fourth paragraph to find: "Unless you have received prior written authorization [...] you must not: (a) copy, translate, modify, or make derivative works of the Content or any part thereof..." etc.
The thing is, without that license, you're bound by copyright. That means you're not allowed to redistribute those files, or anything derived from them, at all without permission from the copyright holder, with the exception of uses allowed by fair use.
For source code and similar things, there's a default position which is highly restrictive, and the open source license loosens the restrictions. Nothing forces you to accept the license. It's just that you can do much less with the material if you don't.
Terms of Service are a completely different beast, because the default position is that you can use services that are mad public over the internet more or less however you feel like, as long as you don't violate copyright and such. The ToS then adds restrictions.
I can only think of one, and it was overturned. Most of the others (that I can think of) have to do with an employee/employer relationship. Even the recent Craigslist case wasn't necessarily a case of ToS violation, because they were explicitly asked to C&D, but didn't.
Violating a license isn't illegal, only violating copyright is. I don't think there's an equivalent for terms of service for a freely-available service.
I think a big difference is whether it's for commercial purposes, or has some evil motive. Eating KFC in McDonalds is probably breaking some rule, but no-one in their right mind would really care. Selling your own fried chicken in McDonalds is much more likely to lead to trouble. A political stunt is somewhere in between, but should generally be given a bit of lenience.
So I'd say it should be OK to use a script to automate some personal task. Creating a business which relies on breaching a ToS is both wrong and stupid. And while political hacks might be a bad idea, they might also be the right thing to do.
Here's the thing about the law - it's not quite black and white. A judge or jury will always consider the circumstances, when they decide what to do with you. The same is true about companies blocking you. Sometimes, you need to use common sense, and hope that other people do to.
This is a useless observation. You may be able to effect a limited degree of societal change, but you will never satisfactorily eliminate the problem at its source. Other solutions are necessary.
A specific example - I had to convince executives that we needed to pay MPEG LA because we were using FFMPEG to encode and decode using 264 on our servers. I only convinced them after a long debate and contacting our legal department to explain the risk. It had very little to do with my personal views on licensing or patents and everything to do with professionalism. A lot of the other software developers thought this was wasting money and time, and paying off people that were somehow evil because they charge large sums for using their patented software. My stance has always been if yo don't like the terms use something else and avoid the ethical dilemma. It's just plain easier and avoids some risk.