U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Violation of a Website's Terms of Service is Not Criminal

Internet users can breathe a collective sigh of relief as the Ninth Circuit has just reaffirmed their prior precedent that violating a website's terms of service is not a criminal act.

While the appeal handed down is a mixed bag of good and bad news for Rimini, the company Oracle sought to hold criminally liable for violating Oracle's TOS, the good is that Rimini has escaped the criminal liability portion of the district court's judgment. The bad news is that the circuit court affirmed the district court's judgment on the copyright infringement claims.

Can You Ignore a Website's TOS?

While the recent Ninth Circuit ruling absolved Rimini of criminal liability for violating Oracle's TOS, that doesn't mean consumers and businesses are free to start violating service terms left and right. Individual websites can still pursue other claims against individuals that violate their terms of service, and websites can also simply deny services to those that violate their terms.

Interestingly, in the Oracle v. Rimini case, Oracle never cut off service from Rimini despite repeated violation, and Oracle issuing a cease and desist. Specifically, Rimini violated a term that prohibited the use of automated scripts to scrape data, but noted that they started using the automated scripts on Oracle's own suggestion (before the TOS was changed to prohibit the use of scripts). The court reasoned that since the data was available, the violation of the terms of service in the method of access simply cannot be seen as a criminal act, or access without permission.

Unpermitted Access Still Illegal

While the violation of a website's TOS may not be enough to be the basis of a criminal action, that doesn't mean that you can just go ahead and ignore the law. Accessing unpermitted areas of websites, particularly if there has been some circumvention or hacking, can still be prosecuted under state and federal laws. For instance, if Rimini continued to access Oracle's website after being denied access, criminal liability could have attached.

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