Colorado Woman Sues To Hold Web Crawlers To Contracts

["'Richard M. Smith'" <rms () computerbytesman com>]

Note:  The Web site in question appears to be
http://www.profane-justice.org/.  I didn't see a robots.txt file at the
site.

 

Richard

 

  _____  


Colorado Woman Sues To Hold Web Crawlers To Contracts 


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http://www.informationweek.com/news/showArticle.jhtml?articleID=198001674


Web site owner Suzanne Shell's lawsuit against the Internet Archive poses a
question: "Can software programs be held liable for their actions?" 



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By Thomas Claburn <mailto:tclaburn () cmp com>  
InformationWeek
<http://www.informationweek.com/;jsessionid=BG4M1UIA2KFEOQSNDLRSKHSCJUNN2JVN
>
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March 16, 2007 05:00 PM 


Computers can enter into contracts on behalf of people. The Uniform
<http://www.law.upenn.edu/bll/ulc/fnact99/1990s/ueta99.htm>  Electronic
Transactions Act (UETA) says that a "contract may be formed by the
interaction of electronic agents of the parties, even if no individual was
aware of or reviewed the electronic agents' actions or the resulting terms
and agreements." 

This presumes a prior agreement to do business electronically. 

So what constitutes such an agreement? The <http://www.archive.org/>
Internet Archive, which spiders the Internet to copy Web sites for posterity
(unless site owners opt out), is being sued by Colorado resident and Web
site owner Suzanne Shell for conversion, civil theft, breach of contract,
and violations of the Racketeering Influence and Corrupt Organizations act
and the Colorado Organized Crime Control Act. 

Shell's site states, "IF YOU COPY OR DISTRIBUTE ANYTHING ON THIS WEB SITE,
YOU ARE ENTERING INTO A CONTRACT," at the bottom of the main page, and
refers readers to a more detailed copyright notice and agreement. Her suit
asserts that the Internet Archive's programmatic visitation of her site
constitutes acceptance of her terms, despite the obvious inability of a Web
crawler to understand those terms and the absence of a robots.txt file to
warn crawlers away. 

A court <http://blog.ericgoldman.org/archives/waybackshell.pdf>  ruling last
month granted the Internet Archive's motion to dismiss the charges, except
for the breach of contract claim. 

In a post <http://blog.ericgoldman.org/archives/2007/03/can_a_spider_en.htm>
on law professor Eric Goldman's Technology & Marketing Law blog, attorney
John Ottaviani, a partner at Edwards & Angell in Providence, R.I., says the
issue is "whether there was 'an adequate notice of the existence of the
terms' and a 'meaningful opportunity to review' the terms." 

If a notice such as Shell's is ultimately construed to represent just such a
"meaningful opportunity" to an illiterate computer, the opt-out era on the
Net may have to change. Sites that rely on automated content gathering like
the Internet Archive, not to mention Google
<http://informationweek.com/news/showArticle.jhtml?articleID=198001263%20> ,
will have to convince publishers to opt in before indexing or otherwise
capturing their content. Either that or they'll have to teach their Web
spiders how to read contracts.

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