Many of us question whether sneakwrap agreements like the Terms of Service (ToS) of most websites should be considered a binding contractual agreement. But several stories in the news have shown a disturbing trend that goes even further -- treating a ToS violation not just as a breach of contract, but as a criminal act.
Certainly the story getting the most attention right now is the tragic cyberbullying case in which a 49-year-old woman is alleged to have harassed a teenage girl into suicide using a phony MySpace account. Lacking appropriate laws covering cyberbullying, federal prosecutors have brought charges against the woman -- in Los Angeles, MySpace's headquarters, rather than Missouri, where the woman and the teenager resided -- for violating MySpace ToS provisions. As many observers have noted, it's a real stretch to use the federal anti-hacking statutes in this way, and a very slippery slope.
Earlier this month, World of Warcraft (WoW) publisher Blizzard sued MDY, Inc., maker of a program called Glider that automates WoW play. Using a program like Glider undeniably violates the WoW EULA and terms of use, but Blizzard is also suing the company for copyright infringement, arguing that the copy of WoW loaded into RAM when using Glider is illegal, just because it violates the EULA. In other words, they're saying that using a product you've paid for can still be a copyright violation if you don't follow their fine-print rules.
And since copyright infringement can carry criminal as well as civil penalties, another piece of news that might be relevant is the "Copyright Czar" bill that the House of Representatives recently passed. With thousands of ordinary Americans falling victim to identity theft, phishing scams, etc., Congress wants to create a cabinet-level position to fund and marshal federal law enforcement resources to protect ... not us, but the motion picture and music industries. Terrific.
