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I used the whois Linux command to look up information for mit.edu:

$ whois mit.edu 
This Registry database contains ONLY .EDU domains.
The data in the EDUCAUSE Whois database is provided
by EDUCAUSE for information purposes in order to
assist in the process of obtaining information about
or related to .edu domain registration records.

The EDUCAUSE Whois database is authoritative for the
.EDU domain.


A Web interface for the .EDU EDUCAUSE Whois Server is
available at: http://whois.educause.edu


By submitting a Whois query, you agree that this information
will not be used to allow, enable, or otherwise support
the transmission of unsolicited commercial advertising or
solicitations via e-mail.  The use of electronic processes to
harvest information from this server is generally prohibited
except as reasonably necessary to register or modify .edu
domain names.




Domain Name: MIT.EDU


Registrant:
    Massachusetts Institute of Technology
    77 Massachusetts Ave
    Cambridge, MA 02139
    USA


Administrative Contact:
    Mark Silis
    Massachusetts Institute of Technology
    MIT Room W92-167, 77 Massachusetts Avenue
    Cambridge, MA 02139-4307
    USA
    +1.6173245900
    mark@mit.edu


Technical Contact:
    MIT Network Operations
    Massachusetts Institute of Technology
    MIT Room W92-167, 77 Massachusetts Avenue
    Cambridge, MA 02139-4307
    USA
    +1.6172538400
    noc@mit.edu


Name Servers:
    EUR5.AKAM.NET
    USW2.AKAM.NET
    ASIA1.AKAM.NET
    USE5.AKAM.NET
    USE2.AKAM.NET
    ASIA2.AKAM.NET
    NS1-173.AKAM.NET
    NS1-37.AKAM.NET


Domain record activated:    23-May-1985
Domain record last updated: 08-Jun-2021
Domain expires:             31-Jul-2024

If this had been the first WHOIS request I had submitted on a .edu domain, I would not have had a chance to read the terms of service. Would these ToS be binding on my first request? Of course, they are binding for later requests, because I have [had a chance to] read them.

Someone
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2 Answers2

1

No

One of the fundamental requirements for an enforcable contract is that there must be agreement - you cannot agree to something you can't know. You can agree to something you don't know if you were given the opportunity to find out and didn't.

However, the information you receive is not part of a contract since there is no consideration flowing from you to the Registry. Therefore, it must be a gift. However, gifts cannot come with conditions subsequent; I can impose conditions that you need to satisfy before I will give you the gift but I cannot require anything of you afterwards - that would make it a contract. Note that if you doing the conditions requires me to give the gift, then that makes it a contract too, however, if I still have discretion about giving the gift even if you fulfill the conditions, it's still a gift.

For your first call to a .edu domain, you would not be bound by this condition. For all subsequent calls, you would be.

Of course, "the transmission of unsolicited commercial advertising or solicitations via e-mail" is illegal anyway.

Dale M
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  • Is anyone who reads this question then makes a WHOIS lookup on an edu domain bound by the agreement? – Someone Aug 18 '22 at 04:42
  • So if I walk into a restaurant with no shirt and no shoes, and there is a sign posted saying "no shirt, no shoes, no service" the restaurant is legally bound to serve me because by entering the store we entered into a contract for service without me knowing or agreeing to the terms? Thereafter though I could expect to be turned away, (because hey, we've seen you here before...) but not the first time? Does this make any sense? – Michael Hall Aug 18 '22 at 05:00
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    @MichaelHall that's a false equivalence. The actual situation: if you had placed your order which the restaurant had accepted and then they told you about the dress code, you would be entitled to your meal. It's also not correct to equate the one-and-done whois request with your ongoing presence in the premises. – Dale M Aug 18 '22 at 05:03
  • If you paid to make the info query I would agree. Otherwise a better example would be a soup kitchen offering free meals that has a dress code. You really aren't on a position to dictate terms when it comes to using or not using free things from public institutions. – Michael Hall Aug 18 '22 at 05:08
  • Could the soup kitchen prohibit the recipient from taking pictures of the soup without notifying the recipient until they had already been given the soup? – Someone Aug 18 '22 at 05:09
  • @Someone, could they copyright a poem written with alphabet noodles in the soup? – Michael Hall Aug 18 '22 at 05:10
  • @MichaelHall yes, but if there is no contractual obligation to not photograph the soup, the recipient could take a picture and use it to criticize the poem, and have a fair use defense to copyright infringement. If they are contractually bound to not photograph the soup, however, fair use is irrelevant. – Someone Aug 18 '22 at 05:13
  • Or the recipient could stir the soup before taking the picture, causing the alphabet noodles to no longer spell out the poem, making copyright in the poem irrelevant. – Someone Aug 18 '22 at 05:14
  • I suppose technically it would be possible to patent "a method for producing images of soup" which included a soup recipe and instructions for taking a picture of said soup, but it's unlikely. – Someone Aug 18 '22 at 05:24
  • @Someone I can’t really see the novelty in that that a patent requires – Dale M Aug 18 '22 at 05:50
  • @DaleM if I invent a new type of soup, a method for producing images of that type of soup is novel. – Someone Aug 18 '22 at 06:50
  • Any case law on that? IIRC, "shrink wrap" license terms are usually upheld. – ohwilleke May 15 '23 at 16:44
-3

If you had a chance to read the terms of service before you "allow, enable, or otherwise support the transmission of unsolicited commercial advertising or solicitations via e-mail" then of course they are enforceable.

The query results are not themselves a contract, but an offer: an IF/THEN condition. i.e. "IF you choose to use this information, THEN you can use it for anything but this ___."

You are free to back out at any time without obligation. However, once you make a decision to actually use the information offered for some purpose, you have agreed to the contract and become obligated to comply with the terms of service under which it was offered.

Michael Hall
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  • So it's possible to agree to a contract you could not review before agreeing to it? – Someone Aug 18 '22 at 01:50
  • It isn't a contract as much as a rule. You can use the information they provide in accordance with their policy, or not. You have no contractual obligation to do anything with it because the information is free. Look at it this way, is a 35mph speed limit enforceable if I turn onto a street with the intention of going 45, and only find out after I see a sign that it's 35? – Michael Hall Aug 18 '22 at 01:54
  • Yes, but that's a law, not a rule imposed by a private party. By reading this message, you agree to not include the word "dog" in your reply. Is that binding? – Someone Aug 18 '22 at 02:08
  • Dog. No, it isn't binding. But if I asked for your personal email address or phone number so we can continue this discussion on the side, and you provided it under the condition that I not sell it to telemarketers, and I subsequently did, you would have some legal recourse if you chose to sue me. MIT and other public institutions offering the information you seek have a right to dictate what it may or may not be used for. It's that simple, take it or leave it. – Michael Hall Aug 18 '22 at 02:35
  • Don't send commercial messages to +1 234 555 6789. So now if you did, and I could prove it (I couldn't, because that's not my phone number), I could sue you? – Someone Aug 18 '22 at 04:44
  • Sure, but you probably wouldn't win if I sold it to a third party who sent you commercial messages. Because I wouldn't have violated your terms. – Michael Hall Aug 18 '22 at 04:46
  • So if I sell MIT's contact addresses to a third party, and that third party sends them spam, neither I nor the third party have done anything illegal? What if the third party is an LLC I own? – Someone Aug 18 '22 at 04:48
  • "By submitting a Whois query, you agree that this information will not be used to allow, enable, or otherwise support the transmission of unsolicited commercial advertising or solicitations via e-mail. The use of electronic processes to harvest information from this server is generally prohibited except as reasonably necessary to register or modify .edu domain names." What part of these terms confuses you? – Michael Hall Aug 18 '22 at 04:52
  • Oh, sorry, I was confused. Their terms prohibit "allow[ing], enabl[ing], or support[ing]" the act of transmission, while mine only prohibit the act itself. – Someone Aug 18 '22 at 04:53
  • Cause, allow to be caused, alleged to enable, support or allow enabling, enable alleged causing... How many ways do you need to hear "don't"?! – Michael Hall Aug 18 '22 at 05:02
  • TOS are, in fact, contracts: https://law.stackexchange.com/questions/13549/are-terms-of-service-legal-contracts – Michael Aug 18 '22 at 06:36
  • @Michael, Ok, but what action creates the contract? Since the terms of service are specific to the USE of the information, then the contract should start when the information is used, right? Having knowledge of, or access to, information doesn't bind you to do ANYTHING with it. Just looking at it is free, but if you do decide to "use" it for something, the contract says you can't use it for "X". And you are made aware of that contractual stipulation during the free preview period, so you have a chance to back out of any obligation, and don't have an excuse for not knowing. – Michael Hall Aug 18 '22 at 16:04
  • ... walking into a store doesn't obligate you to buy anything, the contract, (and any terms) is the sale. A data query is more like shopping than buying. – Michael Hall Aug 18 '22 at 16:07
  • @MichaelHall that has the making of a great question and you should post it. I doubt any answer that would fit in a comment would be satisfactory. – Michael Aug 18 '22 at 17:56
  • @Michael, I thought that's pretty much what this question was about, but nobody seems to like my answer... – Michael Hall Aug 18 '22 at 18:29