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EFF asks US judge to squash criminal indictment
US ONLINE RIGHTS CAMPAIGNERS at The Electronic Frontier Foundation (EFF) and a coalition of academics and public policy groups have asked a federal judge to dismiss a criminal case that could give websites extraordinary power to dictate what behaviour constitutes a computer crime.
Ticket reselling service Wiseguys Tickets has been dragged into court by US prosecutors, who alleged that four purchased tickets violated Ticketmaster's terms of service and therefore the Computer Fraud and Abuse Act (CFAA).
The EFF argues that this prosecution expands the scope of the CFAA beyond what Congress intended, grounding criminal liability in whatever arbitrary terms of service websites decide to impose on users.
If the government's theory is correct, anyone who disregards, or doesn't read, the terms of service on any website could face computer crime charges.
The EFF's civil liberties director Jennifer Granick said that would give Ticketmaster and other online services extraordinary power over their users.
Basically they could decide what is criminal behaviour. Price comparison services, social network aggregators, and users who subtract a few years off their ages could all be criminals.
Granick pointed out that Ticketmaster had a financial interest in the ticket-reselling business and stands to benefit substantially from putting competitors out of business.
EFF senior staff attorney Marcia Hofmann said that the CFAA is aimed at blocking trespass and theft, not quashing innovation. Yet under the government's theory, websites could put the power of criminal law behind their own terms of service to create severe obstacles for their competitors.
The INQUIRER's newsroom non-lawyers also think that even if websites require users to read and agree to their terms of service, the websites' unequal leverage over users could render those terms what are called 'contracts of adhesion', and therefore make them invalid and unenforceable. µ
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Since this article is so unclear I'll post a bit from the EFF site:
The four sued in this case are the operators of "Wiseguys Tickets, Inc.", a ticket-reselling service. In its indictment, the government claims the four purchased tickets from "Ticketmaster" by automated means, violating Ticketmaster's terms of service, and therefore the Computer Fraud and Abuse Act (CFAA.
So it's a bit in the open if the broad conclusions the EFF think can be drawn from this is quite realistic, it's one company abusing another company and the first one suing, and seeing they had a ToS that said you could not use automated means then if it can be shown they did use such for their own gain it seems pretty open and shut, and not necessarily applicable to any broad interpretations the EFF covers it with since for starters it's 2 commercial entities and not private individuals, and it's specifically about tickets sales.
You don't specify that you are replying to someone so I assume you are commenting on the article. It's interesting that the article discusses concert tickets but you are discussing the purchase of digital rights.
Consider two questions:
(1) Is it lawfull for a person to buy a CD/DVD or MP3 file and give it to someone as a gift?
(2) Is it lawfull for me to buy a concert ticket and give it to someone as a gift?
Now re-read your comment, where you typed that "You are purchasing the right to USE the material as dictated by the terms of purchase. Common law does not apply nor allow you to distribute..."
Now you realize you were wrong.
When you purchase digital rights, aka music, software, video, etc. you do not own the copyright protected material. You are purchasing the right to USE the material as dictated by the terms of purchase. Common law does not apply nor allow you to distribute copyright protected materials.
There's a clear principle here:
Once you've completed a purchase for a piece of property it's *yours* to do with as you wish, even if it's a ticket to be scalped. Sellers can't impose future terms on what you do with your own *property*, and *definitely* not without a signed and witnessed piece of paper.
This is an insane escalation of "contract" law, which is mainly a trick used to *steal* by getting the victim to think that he's "agreed" to unknown and unknowable terms.
Lawyers, spare me caveats and cavils, because that's exactly the weenie legalisms that just *aren't* true except in your damned corporatized fascist state when enforced at gunpoint, but will never be right or just. -- Which is my second point, that lawyers and corporations do *not* rule the world with sneaky hidden terms, they've just tricked a massive number of people into accepting a myth that *contract* law is superior to *common* law.
By reading this sentence, you agree to pay $1 for each letter beyond the first comma.
Sorry, Dan, but I don't agree with your assessment. While people are supposed to be responsible and make sure they're within the law, the Founding Fathers of the United States(yes, I know this is an International Forum with the server located in the UK) felt that laws shouldn't be overly obtrusive and that general common sense should be enough to keep people within the law.
Of course, they also hated paper money and the direct taxation of a person's pay, so what the hell do I know?
Obviously if this is going to become the standard websites need to lay out the terms and conditions before allowing you to do anything, ala the first startup of Windows on a new computer. If they don't directly present you with the terms before allowing you to use their service, then I don't see how you can be held responsible for them.
After that, though, it's all on the user. Once again, government regulation simply gets in the way here. If you don't like the terms, don't do business there.