[mythtv-users] Free US/Canada Listings

Brett Kosinski fancypantalons at gmail.com
Tue Sep 11 20:48:10 UTC 2007

> And while it may seem that TOS and EULA sare not legally enforceable,
> and indeed, some courts have refused to enforce them, there are quite
> a few courts that have enforced TOS and EULAs.

EULAs I can sort of see... the ones that you can't read until you open the
box are fairly onerous, but you have a choice to install the product, and in
making that choice, you actively agree to take part in the contract (I
guess... :).

But TOS?  Really?  Looking at the case you referenced, plaintiffs have
claimed the act of scraping constituted:

   - a violation of the federal Computer Fraud and Abuse Act,
   - a trespass to the website operator's computer systems,
   - a breach of the operator's website terms and conditions, and
   - a violation of the federal Copyright Act.

What's interesting is that, with respect to TOS's, that page specifically
says that

"For website terms and conditions to be enforced against an accessing party,
courts have required that the user explicitly assent to those terms."

As an example, in the case of "Specht vs Netscape", it was found that the
defendant did *not* violate a contract with Netscape by downloading their
software.  Which is, as it happens, why many websites now have a TOS which
must be explicitely agreed to (just try downloading the JDK to see what I

Further, according to that website, copyright law also does not apply, at
least in the case of Tickets.com, though in that case, it's because the
defendant was reproducing raw data, which is not covered by copyright law
(TV schedules contain copyrighted material, in the form of program
descriptions).  Then again, if a person isn't redistributing the data,
copyright shouldn't come into play, thanks to the fair use doctrine (though,
as Slashdot reminds us, that only provides an affirmative defense).

However, none of this is to say that screen scraping is legal.  In the US,
it's apparent that one can run afoul of the CFAA, through which a number of
cases were found in favour of the plaintiff.  In other cases, trespass came
into play.  Either way, this fits with my original supposition:  that
scraping may be illegal, but not on the basis of contract or copyright law.

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