Pilgrim v. Burton re: The Onion's TOS
TOS doesn't endorse RSS Feeds: Interesting discussion re: enforceability of The Onion's terms of service to exclude users from pulling an rss feed over at dive into mark. My question to Mark is --- how does The Onion expect to enforce their terms of service without a registration and/or a click wrap agreement requiring such. See my earlier discussions.
My thoughts being that just because someone creates an RSS feed for personal use, they are not necesarily in the wrong. Why am I bound to accept the onion's terms of service? Just because I entered their website? I haven't seen any cases out there enforcing what I term browse read agreements, like the onion's, but rather only click read/click-wrap agreements like the l.a. times.
Update: Unfettered Attorney (posting anonymously) is advocating application of the CFAA, citing EF Cultural Travel v. Zefer Corporation (1st Cir.), to the situation above. The applicable part of the statute requires knowingly and with intent to defraud which I do not believe is satisfied by someone scraping a site to read the content for their personal use. UA also cites eBay v. Bidder's Edge (N.D.Cal), wherein the court "issued a preliminary injunction, enjoining Bidder's Edge from using a software robot or other automated query program to access without permission eBay's computer systems for the purpose of obtaining information concerning ongoing auctions at eBay, on the grounds that such activity is likely to constitute a prohibited trespass to chattels." Although, this is a closer issue, the court is enjoining Bidder's Edge from engaging in scraping for commercial purposes. We'll have to wait and see how this is treated by other courts, maybe The Onion will bring a complaint in EDNY and we'll find out. Stay tuned.
My thoughts being that just because someone creates an RSS feed for personal use, they are not necesarily in the wrong. Why am I bound to accept the onion's terms of service? Just because I entered their website? I haven't seen any cases out there enforcing what I term browse read agreements, like the onion's, but rather only click read/click-wrap agreements like the l.a. times.
Update: Unfettered Attorney (posting anonymously) is advocating application of the CFAA, citing EF Cultural Travel v. Zefer Corporation (1st Cir.), to the situation above. The applicable part of the statute requires knowingly and with intent to defraud which I do not believe is satisfied by someone scraping a site to read the content for their personal use. UA also cites eBay v. Bidder's Edge (N.D.Cal), wherein the court "issued a preliminary injunction, enjoining Bidder's Edge from using a software robot or other automated query program to access without permission eBay's computer systems for the purpose of obtaining information concerning ongoing auctions at eBay, on the grounds that such activity is likely to constitute a prohibited trespass to chattels." Although, this is a closer issue, the court is enjoining Bidder's Edge from engaging in scraping for commercial purposes. We'll have to wait and see how this is treated by other courts, maybe The Onion will bring a complaint in EDNY and we'll find out. Stay tuned.
