Legal Q about website "terms of service"

[CaveMike]

First off, I’d like to ask a legal question for curiosity’s sake and not as an attempt at getting real, legal advice. I don’t hold any answers as authoritative and I ask that other readers/lurkers do the same. In case of jurisdiction, I would be interested in hearing about any location, but if it helps to pin the question down, let’s use the US.

Lot’s of websites have a “terms of service” or “condition of use” policy. For example, here is Amazon’s. I am curious how legally binding these are. Have any been tested in court? Or have similar agreements held up in court? Would it matter if the policy was violated for free vs. commercial use? I assume that a small amount of content could be considered fair-use, but what about clearly much larger content?

For example, what if I wanted to create a movie web site. Rather than enter all of the data in myself, I wrote a program that searched the Internet and built the data programmatically. The program crawled through the Internet and built its data using many web sites, including, imdb and Amazon. I assume this would be in violation of IMDB and Amazon’s terms of service. But would it be actionable? Would these websites have a strong case against my site? Obviously, they might have weblogs that show pages reads from my program. They might also be able to correlate the data on my website with the data on their website (e.g. they might share a common set of misspellings). But would it matter that this meta-data is factual? In other words, the actors of a given movie are a matter of record and not the creation of these websites.

And just to re-iterate, I am not planning or advocating doing this. I just want to make the question as concrete as possible by giving a specific example. I am not trying to couch this as a “my friend” kind of question.

[samclem]

This is a serious question from the OP. Any answers are appreciated.

samclem

[ishamael69]

Perhaps not exactly what you are looking for, but a Dutch court recently upheld a web site license. See here:

http://www.creativecommons.ca/blog/?p=165

[Gladstone]

This is definitely not legal advice.

Just doing a quick Westlaw search indicates that several courts have analyzed a website’s terms of service as though it were any other contract. For instance, in SmartText Corp. v. Interland, Inc., 296 F.Supp.2d 1257 (D.Kan., 2003), one of the central questions in the case was whether SmartText accepted Interland’s online terms of service when it registered to host a website through Interland. The court treated the question as it would any other contract dispute, including its analysis of a mandatory arbitration clause to any disputes that was contained in Interland’s terms of service.

Based on the Amazon.com link in the OP, Amazon specifically lists that its “graphics, logos, page headers, button icons, scripts, and service names are trademarks” and “may not be used in connection with any product or service that is not Amazon.com’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Amazon.com.”

In their license agreement, Amazon specifically says that "This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Amazon.com. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Amazon.com and our affiliates without express written consent. "

Thus, if you did use a portion of their site that conformed to the lists above, according to Amazon’s conditions of use, Amazon would submit the matter to a state (or more likely federal) court in the State of Washington and your violation of Amazon’s trademark will be deemed (at least by Amazon) as a waiver of a Washington court’s lack of personal jurisdiction over you.

[LSLGuy]

There is a fairly long legal history (at least in computer terms) that holds that collections of facts may be copyrioghhtable even though the fatcs themselves aren’t.

The classic example is the phone book. You can’t legally take a white pages, scan it into a database, and then sell it as an on-line lookup feature. Even though the white pages publisher dowes not own any of the individual names & numbers in there, they do own the effort required to put it into one place and you’re infringing on that by reproducing it.

If you wanted to somehow gather the same facts individually & publish your own competing white pages, on paper or electrnic, that’d be fine. But copying there’s is a no-no.

What the OP proposes is interesting. There is a lot of interest now in so-called “mash-ups”, building a web site that glues together content from other websites in a useful way. The critical thing is that hte mash-up site has to have the permission of all sites that they use for all teh features that they use.

So, for example, yuo can use the google map engine if you get the toolkit & permission kit, but you can’t just link to their logos & provide “CaveMike’s search engine” which simply forwards the request to google, reformats their results & feeds them out to the browser.

I bet googling for [mash-up copyright] would be informative.

[Gfactor]

1. To some extent, it depends on how the TOS are presented, and how the site user expresses agreement. As the Second Circuit put it in 2001, “Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility.” Sprecht v. Netscape (reviewing law nationwide). Courts do not refuse to enforce terms of service just because they are terms of service. As **Gladstone ** suggests, they apply contract principles to them.

@LSLGuy

The classic example is the phone book. You can’t legally take a white pages, scan it into a database, and then sell it as an on-line lookup feature. Even though the white pages publisher dowes not own any of the individual names & numbers in there, they do own the effort required to put it into one place and you’re infringing on that by reproducing it.

The Supreme Court rejected the “sweat of the brow” theory in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (no copyright in white pages).

[mazinger_z]

@Gfactor

The Supreme Court rejected the “sweat of the brow” theory in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (no copyright in white pages).

While that is true, Amazon and IMDB arrangement of the facts are copyrightable. I don’t think anyone here would disagree with that.

So, to the OP, another issue you would have to deal with is how the your program compiles and displays the data. A very strong argument can be made by IMDB and Amazon that their data is copyrightable. Is your program merely taking facts away from these sites, where, as stated in Feist, the data is factual and in an arrangement which requires no originality or creativity?

Deep linking (and another similar term) is another issue entirely.

[Gfactor]

@mazinger_z

While that is true, Amazon and IMDB arrangement of the facts are copyrightable. I don’t think anyone here would disagree with that.

Right. As the *Feist * court pointed out, original arrangements (as opposed to obvious ones) are copyrightable. So are editorial comments.

A very strong argument can be made by IMDB and Amazon that their data is copyrightable.

Facts are not copyrightable; data is a collection of facts. The arrangements of the facts are copyrightable, but the protection only extends to the original parts–not to the facts:

The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Patterson & Joyce 800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum. L. Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. In Harper & Row, for example, we explained that President Ford could not prevent others from copying bare historical facts from his autobiography, see 471 U.S., at 556-557, but that he could prevent others from copying his “subjective descriptions and portraits of public figures.” [p*349] Id., at 563. Where the compilation author adds no written expression but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. See Patry, Copyright in Compilations of Facts (or Why the “White Pages” Are Not Copyrightable), 12 Com. & Law 37, 64 (Dec. 1990) (hereinafter Patry). No matter how original the format, however, the facts themselves do not become original through association. See Patterson & Joyce 776.

Feist.

As mazinger_z points out, a key issue is whether you are using any of the original contributions of the author. If you are only taking factual information (not the presentation or organization of the information), that’s one thing. If you are copying the presentation, arrangement, or organization of the information, you could be infringing some copyrights.

[Gfactor]

Here’s some stuff on deep linking, among other things:

http://www.murdoch.edu.au/elaw/issues/v11n1/meyer111_text.html (discusses cases from many jurisdictions, including the US)

http://www.wired.com/news/politics/0,1283,51887,00.html

http://www.linksandlaw.com/courtdecisions-usa.htm

[CaveMike]

Thank you everyone for the thoughtful effort in addressing the OP. I have been reading through the links and found a similar case in one of gfactor’s links. In fact it even references another example I had (building a real-estate database):

It leaves the eBay case [28] in which the defendant, aptly named Bidder’s Edge, was accused of using a robot - a spider - to extract information about eBay’s auction listings, placing the information in its own database so that its viewers could search eBay’s listings more effectively. Significantly, eBay did not base its complaint on intellectual property law, but on an ancient common law wrong known as trespass to chattels, an unauthorised interference with another’s personal property that causes harms. This is the same remedy as was hinted at in Ticketmaster see above. On appeal, an amicus curiae brief by 28 leading law professors argues that if the decision - a preliminary injunction - were to stand, it would allow web sites to fence off non-copyrighted materials such as eBay’s listings, retarding the growth of e-commerce and preventing online transactions. The authors only acknowledge that if significant harm is done to operations or server capacity, or to a customer base - e.g. in cases of spamming - the trespass theory might work, but they indicate that as eBay’s servers were devoting 1.3 per cent of their capacity to Bidder’s Edge traffic, this was not enough to trigger the remedy; eBay obviously argues the reverse. Interestingly, in another amicus brief, R.A. Epstein of the University of Chicago written on behalf of Reed-Elsevier plc, the National Association of Realtors and several e-commerce companies, all of whom publish information online and are lobbying the U.S. Congress for increased protection of online databases argued that a web site is real property and not a chattel - i.e. personnel property - and that any electronic intruder may be kicked off without the need to show harm [29] Accepting this theory would induce web site owners to bargain over access rights. Claims concerning hyperlinking are increasing, thick and fast, including e.g. in Denmark [30]