Quote:Many web sites make you click on “agree” to the terms and conditions before going on, but Ticketmaster does not. Further, the terms and conditions are set forth so that the customer needs to scroll down the home page to find and read them. Many customers instead are likely to proceed to the event page of interest rather than reading the “small print.” It cannot be said that merely putting the terms and conditions in this fashion necessarily creates a contract with any one using the web site.
Ticketmaster Corp. v. Tickets.Com, Inc.
, 2000 WL 525390, 3 (C.D.Cal., 2000).
Quote:[A]n offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious....
Windsor Mills, Inc. v. Collins & Aikman Corp.
, 25 Cal.App.3d 987, 993, 101 Cal.Rptr. 347 (Cal.Ct.App.1972).
Quote:Netscape argues that the mere act of downloading indicates assent. However, downloading is hardly an unambiguous indication of assent. The primary purpose of downloading is to obtain a product, not to assent to an agreement. In contrast, clicking on an icon stating “I assent” has no meaning or purpose other than to indicate such assent. Netscape's failure to require users of SmartDownload to indicate assent to its license as a precondition to downloading and using its software is fatal to its argument that a contract has been formed.
Specht v. Netscape Communications Corp.
, 150 F. Supp. 2d 585, 595 (S.D.N.Y., 2001).
To summarize, users of IMDB are not bound by the terms of usage of the website because they are not required to accept them. I was unable to make the moderators of Mythbuntu forums see this fact when it came to a program to obtain EPG data from Microsoft Media Center servers. The Microsoft TOS for their Media Center data explicitly stated that it could not be accessed with anything other than an authorized Microsoft product, but that does not apply to anyone who does not explicitly accept that TOS/license.
If I had purchased and installed Vista MCE (for example), I would have been required to explicitly accept the terms of the license (click "I Agree" in order to install it). IN that case, the terms would be binding. But as a Linux user I've never accepted Microsoft's TOS and am therefore not bound by them. That means I can access data from Microsoft's EPG servers any way I like and there are no legal ramifications. If Microsoft wants to make their servers inaccessible to anything other than a Microsoft product, it's up to them to do so.
In like manner, if IMDB wants to make its users explicitly agree not to scrape the website or to make the website "unscrapable," it's up to them to do so. In the mean time, as I said, their TOS amounts to nothing more than a request. It's not enough to form a contract and it is not legally binding, even if you HAVE read it and know what it says.