Felony Terms of Use Violations? Lessons for all of us

Recently a new criminal indictment was filed against Aaron Swartz, for his alleged activities downloading large numbers of journal articles. These charges are mostly based on violations of use agreements for JSTOR and the MIT campus network – that is, if the use agreements had been written differently, there might not have been any basis for criminal prosecution.

This isn’t an entirely new issue, but it’s one that libraries have been ignoring, and that others involved in drafting terms of service may also wish to think further about. I wrote fairly extensively about this for C&RL News last fall when the first set of charges were brought against Swartz, but that article may be a little tl;dr for many. Here’s some takeaways:

  • Violations of terms of service can be the basis of criminal charges in many US jursdictions.
  • When you agree to terms of service, you are exposing yourself (or those on whose behalf you’re agreeing) to brand new criminal liabilities. 
  • The more restrictions or limitations a set of terms place on users’ activities, the more possible criminal violations those terms are creating. 
  • Those of us who draft and agree to license terms or terms of service
    do not get to decide
    when or if a violation is worthy of criminal
    in response; that’s up to prosecutors.

If you’re agreeing to terms on behalf of others, you really might want to think about how realistic it is that your users will actually comply with the restrictions & limitations you’re agreeing to, and what criminal risks, completely out of your or vendors’ control, you’re creating for them. Negotiation is an underused option, especially in libraries!

And if you’re drafting terms of use for a commercial service, you really might want to think beyond the “everything and the kitchen sink” approach that imposes tons of restrictions on users. Although it’s users, not your service, who may be exposed to criminal liability, do you really want the PR of having an unnecessary or unreasonable restriction from your terms used to prosecute one of your users?

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