Last week we explored information enclosures. This topic was particularly interesting because it related to my thesis topic paper. In many instances website administrators choose to block access to digital content in an effort to protect the information. On other occasions, website administrators rely on contractual agreements to protect the digital content they share.
For example, in Register.com v. Verio, Register.com displayed a Terms of Service agreements that prohibited the use of information collected via WHOIS data queries for marketing and advertising purposes. When Verio created a program to crawl Register.com’s system to collect data on new domain name purchasers via WHOIS data queries, Register.com sued for breach of the terms of service. In this instance, the court found that Verio had trespassed on Register.com’s chattels by slowing down the WHOIS database and found that Verio had breached Register.com’s Terms of Service agreement.
Similarly, in Tickemaster v. Tickets.com, the court also found that Tickets.com had trespassed on Ticketmaster’s chattels when it used a spider to collect data from Ticketmaster’s website. The data collected was information as to exclusive events which Ticketmaster had gained information to by purchasing rights to the information. Ticketmaster sued for trespass to chattels and won as well.
In both these instances, contractual language like terms of service agreements provided some relief for websites. This relates to my thesis paper because a great deal of the digital content and information online is protected by Terms of Service agreements or User Agreements that prevent the user from infringing on certain rights of the content holders.
The courts have repeatedly demonstrated that there are certain property rights that exist in digital content. A great deal of digital property is protected by intellectual property law. Despite intellectual property rights, the court has demonstrated that other traditional property rights exist for digital content as well, such as trespass to chattels.
The reason I find all of this interesting is because the way that property rights are often protected for digital content is through user agreements and online terms of service agreements. Thus, without terms of service agreements and user agreements a great deal of information would be locked away behind passwords and internet barriers.
I spend a great deal of my paper discussing what I believe is a problem with user agreement sand terms of service agreements, and that is the lack of a meeting of the minds. For a contract to be formed, a meeting of the minds must take place. But must it?
The court has shown that not necessarily. In fact, the court in these two cases has shown that protection of digital property rights and access to information might actually outweigh the meeting of the minds requirement. Without protection of digital information online, what digital content creator would openly share their content with the world on the web? User agreements and terms of service provide the assurance a digital content creator needs for sharing content like music, movies, articles, information, photos, etc. So maybe the court is trying to say, it’s not so much that both parties understand and really agree to the terms of the contract, so much that neither party is unfairly advantaged or burdened by the online user agreement.
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