This reminds me of some PadMapper discussions on HN where people noted that scraping Craigslist for public data (addresses) was "against their TOS" so of course it's wrong. Well guess what, Craigslist's TOS is a browsewrap and completely unenforceable.
I'm not sure why you think this is a compelling argument. In the unlikely event that CL's TOS was found unenforceable, CL would simply adjust them to comply with the courts.
CL isn't carrying out a vendetta against PadMapper. It suffices for their purposes to shut them down going forward. Meanwhile, it helps PadMapper not at all if they gain lawful access to old CL listings. They need all of them, going forward. It is very hard to see the scenario where the law will promise them anything like that.
>>I'm not sure why you think this is a compelling argument. In the unlikely event that CL's TOS was found unenforceable, CL would simply adjust them to comply with the courts.
Such changes would not be enforceable retroactively, meaning they could not be used in the current lawsuit. CL would essentially need to file a brand new lawsuit, which is both costly and time-consuming.
1. The relevant part of the quoted CL language is, "CL may post changes to the TOU at any time, and any such changes will be applicable to all subsequent access to or use of craigslist." EDIT: The qualifier about subsequent use likely makes the language enforceable.
2. Browsewraps are not necessarily unenforceable; courts tend to focus on whether the user had sufficient notice that continued use would constitute agreement to a contract [1].
'jonknee, you make too sweeping a statement there. Neither of the circumstances you describe, separately or together, will necessarily make an agreement unenforceable.
What constitutes hidden terms and conditions is a pretty subtle thing. I think you might be expected to seek out the terms of a business relationship such as this even if it's created unilaterally. It's much easier for a consumer to say 'I just wanted to look for a flat, I had no idea there was a "Firstborn child" clause' than it is for a business to say 'I just wanted to bet my whole business future on this information, I had no idea there would be terms and conditions to access it'.
The GPL is a completely different beast. First of all it does not govern the usage of software, but its distribution. It does not matter that you don't have to click through it when downloading GPL'd software, because it's only important when you want to distribute software. And in that case the default under copyright law would be "you don't have any right to distribute". The GPL grants you the right to distribute the software under specific conditions. So when making GPL software available for others you can either agree to the GPL or you are simply in violation of copyright.
Secondly, the "this or any later version" is again quite different. It allows you to distribute the given software under the current or any later version of the licence, but since you have the choice of which version to use, a new version cannot retroactively restrict your rights (e.g. if GPLv4 doesn't allow you something that GPLv3 does, you can simply keep distributing under GPLv3 if the original software said "GPLv3 or later"). As long as you comply with the version that you choose when distributing, you're fine. I don't think any court would find a problem with that, as you can't be surprised by someone else retroactively reducing your rights.
Not really. If you're not redistributing then you explicitly don't have to accept the GPL and may not be bound by it. If you are redistributing, then either you read and accepted the GPL or you're breaking the law. Redistributing copyrighted work is not "legal by default" the way clicking a link on a website is.
>This or any later version? Check.
The standard language is "or, at your option, any later version published by the Free Software Foundation". There is no claim there that the FSF can unilaterally change the terms.
The only concern I can see for free software is that "This software is distributed as-is without warranty" notices might not be valid if they're not prominent enough and the user isn't forced to click-through before starting the program.
http://www.craigslist.org/about/terms.of.use
They even have the "we can change this at any time" part that is especially pathetic:
> CL may post changes to the TOU at any time, and any such changes will be applicable to all subsequent access to or use of craigslist.