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I am reading the following terms of use

https://jane.com/home/termsofuse

Lets say I am a seller on this platform am I allowed to build a script on my local machine That logs in to my account and list products for me instead of my secretary clicking the buttons. Anyways we can do this manually why not do it automatically.

They do write in their terms of sales that “use automated means to access the Site, or gain unauthorized access to the Site or Services or to any account or computer system connected to the Site;”

Are they allowed to dictate to me what software I use on my computer? Where is the line between what they are allowed to request that I do to what I can do? Can a site request that:

1)A user can only access the site if I am using a Microsoft mouse?

2)The user will only use the site from on iPhone and not android?

I am giving this examples to show that a site can’t request whatever they want.

bdb484
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swimmer
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  • The linked question is about including obviously absurd terms in ToS, unlike this one about marginal or possibly valid but unexpected terms. I don't think it is a duplicate. – David Siegel Nov 10 '21 at 20:16

3 Answers3

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Yes But...

The provider can include anything in the ToS document that s/he chooses to. It may or may not constitute a binding contract, and even if it does, all of its provisions may or may not be enforceable, depending on the laws of the jurisdiction involved.

The ToS linked in the question includes the provision:

BY ACCESSING OR USING THE SITE OR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE,...

That kind of "accept by access" provision does not create a binding contract at all in many jurisdictions. There must be a positive affirmative act, such as signing a name, checking a box, or clinking an "I accept" button in such jurisdictions for the ToS to be a binding agreement.

In a fair number of jurisdictions, there must be consideration for a ToS to act as a valid contract.

Even where there is a binding agreement, a party must usually show damage to sue successfully. The website operator can reasonably argue that its interests are harmed by the use of automated means to access the site, or by bulk downloads. It is hard to see how the operator could argue reasonably that the use of a non-Microsoft mouse harms its interests. This is because use of automated scraping tool potentially consumers significantly more bandwidth than a normal human user, and may increase server costs or hinder access by other users, while a change of mouse model has no such effect.

So, the site can request or purort to require whatever the operator chooses. Whether a suit to enforce such a requirement would be successful is a very different question. A suit to block automated access has, IMO, a fair chance of success, and some precedent in its favor. A suit to block access by a user using a Logitech mouse IMO does not.

Also, some particular provisions may be barred by law, although none of the ones mentioned in the question fall into that category as far as I know.

David Siegel
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    First half OP's status is established so most is inapplicable, second half does not support why a crawler ban is reasonable yet a mouse ban isn't, so is just your opinion. – Harper - Reinstate Monica Nov 11 '21 at 22:15
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    @Harper I am not clear what you mean by "-OP's status is established*" but I was, in any case trying to answer the question in general. I was not so much concerned with establishing that a ban on automated access 9wehich im would not call a crawler) is reasonable -- reasonableness is not the relevant factor anyway --but that some provisions would be enforceable and others would not. If you care to expand further on what you see as lacking in this answer, I would appreciate it. – David Siegel Nov 11 '21 at 22:49
  • @DavidSiegel I was actually reading an article which I downloaded from the following link https://mccarthygarberlaw.com/a-comprehensive-legal-guide-to-web-scraping-in-the-us/ – swimmer Jan 17 '22 at 13:45
  • @Harper In the article he writes that So, good news for Van Buren, but what does this case mean for web scrapers? It means that if you have access to use a website, it shouldn’t be a violation of the CFAA to scrape it, even if the host site doesn’t want you to do so, as long as you’re not crossing through a “gate” that is “off limits.”

    I am wondering if that means that even if it says in the terms of use you can not automate clicks you can still do it? What do you think?

     – swimmer Jan 17 '22 at 13:45
  • @Harper - I have more explicitly stated in he answer at least one reason when use of automated tools may cause damage: increased bandwidth usage. – David Siegel Jan 17 '22 at 16:06
  • @DavidSiegel You can automate clicks in a way that it would not make any of these damages if you build it the same way if I the person would click it will be slow and not have any impact on the server. Does that scenario change your case? – swimmer Jan 18 '22 at 14:57
  • @swimmer yes one could do that, but can the site owner be sure that a third party who doesn't bear any of those cost would do so? A suit for violation of a TOS ban when such care has been used might go nowhere for lack of ability to show damages, but it is simpler to write the TOS broadly and decide to sue if and when actual damage has occurred, if it does occur. – David Siegel Jan 18 '22 at 18:19
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Broadly, yes

They have the right to choose who they do business with and under what circumstances. Just like you do.

Of course, they can’t dictate what software you use on your computer. Unless you have a contract with them where you agree that they can. Because you have the freedom to contract - if you agree to limit what you can otherwise do, you are free to do so.

When entering a contract each party takes on obligations to do or not do things in return for receiving the benefit of the contract. If a party doesn’t think the obligations are worth the benefit then they can (should) choose not to enter the contract.

Unless it’s illegal. Neither of your examples are illegal, indeed, many business offer iPhone apps and not Android apps or vice-versa.

It’s the exact same principle as “no shirt, no shoes, no service.”

Dale M
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  • So if they state the following on terms of use

    “You agree not to:” “use automated means to access the Site, or gain unauthorized access to the Site or Services or to any account or computer system connected to the Site;

    That means if I agree to the terms of use they are dictating to me what software I can use and I’m not allowed to access their site from my own local computer with an automated mean?

     – swimmer Nov 09 '21 at 14:09
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    @swimmer they are not dictating anything. They are stating the conditions on which they will do business with you. You can choose to accept them and do business or choose to reject them and not do business. “No shirt, no shoes, no service” is exactly the same principle. – Dale M Nov 09 '21 at 19:28
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Your argument doesn't hold because they have reasonable reasons for disallowing botting/scraping.

That phrase is boilerplate in almost any TOS.

The reason is to stop automated "attacks" using scripts. (attacks from the company's perspective, since it is bogging down their web servers, or driving their hosting bill over the moon). When novices write a "bot", this can happen all too easily - they don't think about pacing, and maul the server with dozens of requests per second.

Generally when a seller on a marketplace has a need to access a lot of data, the marketplace provides an API expressly for that purpose. This is vastly more efficient, since the server only needs to provide the raw data, not all the features and presentation needed for a proper web page, which is wasted on a bot.

Given their branding, they might not want partners who need to use automated listings

Jane is a curated marketplace with more than 2,000 shops plus big brands and designer names.

That is how Jane holds themselves out in the marketplace. So it would be consistent with their branding to want their "2000 shops" to actually be small artisanal shops - mom and pop operations. They may take the view that shops which depend on automation are probably not a good fit for the site.

Indeed, Etsy, a craftsman artisan marketplace, has had huge problems with their site being flooded with cheap factory/sweatshop items made to look handcrafted. When 100 different sellers all sell the identical item, or when you can find it on Amazon for half the price or Alibaba for 1/10, well, that is destroying their brand.

This a natural "rivalry of interests" between marketplaces who want to stand out as unique, and sellers like you OP, who want to put the same items in every marketplace.

The prohibition on scraping, conspicuous lack of API, and unwillingness to negotiate are evidence of that kind of brand defense.

Do they have a right to make themselves unique and special? Unquestionably. You would get taken to school on that point, if you sued for a "right" to list and a "right" to use automated means owing to your large number of items.

Harper - Reinstate Monica
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    This explains why a site might want to include such language in a TOS. It fails to explain whether, much less why, the law permits enforcing such language, or what the limits if any are to such enforcability. In short, it does not answer the question asked. – David Siegel Nov 10 '21 at 03:05
  • If the website has no API and they handpick their sellers and know you are a seller that has 2000 products in your inventory and you list them with a bot even though it says you cannot Buy the bot Is very light and will do the same job like your secretary and not crowd the server Then what the wrote in their terms of use dose not hold ground? – swimmer Nov 10 '21 at 10:46
  • @swimmer then the seller has a relationship problem with their website, and they should negotiate with their representative. One can't just ignore agreements/contracts with other people anytime one finds them inconvenient. There would be no point to contracts then... it would be anarchy. – Harper - Reinstate Monica Nov 10 '21 at 16:58
  • The issue is the websites try somewhat to protect themselves with one thing they are losing on another.When you speak to the seller recruit team representative they want you to push many products as possible to the platform. However they have no API to list products and the only way to list systematically is building a bot that just works on the web browser that will be no different than a human doing so.However the site representative has no influence on the legal department. – swimmer Nov 11 '21 at 20:40
  • Of course you should respect any site you do business with the question is if they wrote a ridiculous term that has no legal enforcement behind it. Can you build the bot? if you signed the contract? and back to the example of mouse no Microsoft mouse no business. – swimmer Nov 11 '21 at 20:40
  • The restriction would have to be obviously unreasonable from any POV (not just yours). And that is exactly why my answer discusses that point! (even though David Siegel said it was not on topic, I knew it would be!) If the sales rep has been made aware of your Request and has said no, that's that. A lawsuit to compel right-to-scrape would definitely fail. If they want to be stupid, they lose your business. Plenty of other marketplaces online. – Harper - Reinstate Monica Nov 11 '21 at 22:06
  • Every seller on Jane.com gest approved by the seller team. Let’s say you got approved and they know the scale of your company It if your secretary can list 500 products so what is the difference if you liste by automation? Where is the difference for them?

    Another interesting question is in regards to Esty you can use a service like Chanel Advisor which is costly which will allow you to list products automatically on Esty so what gives them the right to ban you if you build your own automation tools as long as your automation tool are harmless for their server.

     – swimmer Nov 12 '21 at 10:29
  • @swimmer those are all business decisions they get to make. I don't think you're going to be happy with any answer here, because it's about their freedom of action vs yours, and the word "their" is the ruling factor here. As I say in my edit, there is an inherent rivalry of interests at work here. – Harper - Reinstate Monica Nov 12 '21 at 18:19