The Law Developer

     I read this story at Techdirt about a developer who crawled Facebook pages and compiled user information and statistics. This is against Facebook’s terms of use. So of course, Facebook sent him a cease and desist and threatened to sue. From the article:

“Their contention was robots.txt had no legal force and they could sue anyone for accessing their site even if they scrupulously obeyed the instructions it contained. The only legal way to access any web site with a crawler was to obtain prior written permission. ”

and

“Facebook’s statement of rights and responsibilites (sic) says that users agree not to collect users’ content or information ‘using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission’”

     Note that the first statement is the developer’s interpretation of the conversation and the second statement is directly from Facebook. If the developer accurately relayed the message then the first statement is obviously wrong. I have a feeling however, that the developer misunderstood and the second statement is what was said. That statement is quoting Facebook’s Terms of Service. When a user agrees to those terms of service, that constitutes a binding contract. Breach of that contract could allow Facebook to bring suit against the breaching party. Someone who hadn’t agreed to those Terms of Service wouldn’t be bound. However, even a person who was aware of the Terms of Use but did not agree to them could be sued under a tort (personal injury) theory. This also means that someone who breached the contract could be sued under a tort theory as well.

     In Register.com v. Verio, the court held that a person who was accessing a site in violation of the Terms of Service could be held liable for trespass to chattels. Chattel is, simply, personal property like a watch, couch, wife (just a joke, calm down), etc. If your neighbor were to tap into your cable line and use your cable, he would be trespassing against your chattel. Much the same way here, a person who continues to access your server in ways that you have made clear are unacceptable is trespassing against your chattel.

     While Facebook may or may not be making the best business decision here, it is certainly making the correct legal decision. Mr. Masnick says in the article “At best, I could see them terminating his account for disobeying the terms of service.” Unfortunately, the law doesn’t work that way. This isn’t a pro-Facebook or pro-Terms of Service law article. This is just the state of the law as it relates to violations of Terms of Service. If the case had gone to court, the developer would have lost and could have faced injunctions, damages, and possibly punitive damages (since this is an intentional tort).

     If a developer plans on making a service or application that relies on another person or company’s servers, she should read the applicable Terms of Service first and make sure that she is not going to violate them. If the developer fails to do so, she is likely going to expend time and effort on a venture that can be stopped by the company at any time. While I am certainly not qualified to determine if Facebook made the right business decision here, I am very certain that creating an application that relies on violating another company’s Terms of Service is a very bad business decision.

Stephen Burch

Tweet This Post

     I discussed earlier how bad patents and patent trolls hurt innovation. A good example of this is Cross Atlantic Capital Partners (XACP). It claims to have invented an Internet-based “community for users with common interests to interact in” in 2000. I’ll pause now to let anyone who was on the Internet before 2000 to stop laughing. Usenet, chatrooms, AOL, Bulletin Boards, are all examples of communities on the Internet that have allowed people with common interests to interact before XACP “invented” this concept in 2000. The article focuses on Facebook’s defense of prior art, and based upon what I know of the Internet (which is way too much, in case you were wondering) Facebook should succeed, as there is nothing novel about this invention (recall that patents have five requirements including novelty and non-obviousness).

     Furthermore, this patent is also obvious. This would be hard to impossible to prove now for Facebook under the current system, and it shouldn’t be that hard. Doing something obvious with a new technology does not make it non-obvious. People with common interests have always found ways to interact, whether it be meeting in real life, exchanging letters, making telephone calls, etc. The Internet has created a new format for people to interact. It is no great stretch of the imagination to believe that people will use this new medium to communicate with each other. In fact, it would be surprising if people chose not to use this new platform to interact with other people with common interests. This is why I still advocate for some sort of blind study where people in the field of the proposed invention are given the problem that the patent seeks to solve. If no one in the study figures out the answer proposed in the patent, then the non-obvious requirement would be satisfied.

     More important than the existence of either prior art or obviousness, XACP is a patent troll. It doesn’t have a competing social networking site. It acquired the patent in question in 2000 but failed to bring suit until 2007. Protection for XACP is not promoting innovation, but rather allowing it to hinder innovation. The Constitution only gives Congress the power to grant patents for the purpose of promoting progress. Patent trolls not only contribute nothing to progress but seek to keep others from innovating. This is clearly the case with XACP. Facebook creates a wildly popular social networking site, patent troll waits until Facebook has lots of money, patent troll sues person who promoted progress. Congress should change the system to prevent this from happening.

     Hopefully Facebook will win. There are significant amounts of prior art. But even if Facebook wins, it will still lose money. The article describes the big name law firms that are involved, and they don’t come cheap. Facebook will spend massive amounts of money defending itself that it could spend adding new features and creating new content. In other words, it has to spend money protecting itself from people who hinder progress instead of spending that money actually progressing. Congress needs to take a good look at these problems and fix the patent system so that it does its job of promoting progress instead of contributing to the hindrance of it.

story via techdirt

Stephen Burch

Tweet This Post