> > You just completely ignored the point. The software grants authorization.
> > Below I cite four cases showing deep links are legal.
>
> That depends how the deep links are used. Deep links that give the
> appearance of still being on the linker's site, and not the linked party's
> site, have been declared to be improper.
No citation, no credibility. You have many claims, but never, ever back anything you say up.
> > If you set up a machine to engage in contract negotiation, do you agree
> > that you are bound by the resulting contract?
>
> If I make such statements, yes. If I don't know that the machine will make
> such agreements, probably not.
This is where I think you deviate from the law. You knew you were setting up the machine, so the presumption must be that you "should know" what it's behavior is. Anything less would be inequitable to the other party in the negotiation, who hasn't a clue as to what you know or don't know other than what they can learn from the machine. If another person relies on your set-up actions, the UCC doesn't allow you to plead ignorance.
> > Are vending machine operators able to sue people who buy candy for theft?
>
> Oh what a DUMB example. Did they pay for it? Voluntarily? Then it is
> hardly theft. Duh!
I'm glad you agree it's obvious. Before you were arguing a machine couldn't bind you to a contract. Here it does so for the vendor.
Copyright licences don't REQUIRE payment, so suppose lever C4 offers a free copy of your digitial image. What then? licenced or not?
As a way of refuting your previous claims: suppose that the opperator **unknowingly** charges $0.50 for an item he wanted to charge $1.50 for. By your standard above, this would be theft because he did not know his machine would negotiate a $0.50 price, and since the price is $1.50, full payment has not been received and/or no contract exists.
> > Are banks able to sue people who transfer money using an ATM for bank
> fraud?
>
> Yes, if they end up taking money that did NOT belong to them. [...]
You are changing my scenario to avoid the question. Assume the money did belong to them, that user relies in good faith on the ATM's representations, and those representations result from proprer execution of the software.
> > Is Hotmail bound by the terms of its end user contract when someone signs
> > up over the web?
>
> That depends on the facts.
What a cop out. Go look the facts up. You could try A) hotmail.com or B) a google search for "hotmail v van$ money pie". You ask me for citations, I give them to you, then you don't read them.
> > What if I run my own web mail, written by someone else, but otherwise
> > identical to Hotmail, with the same agreement. Can I sue someone
> > for unauthorzied access to a computer system when they use the
> > account the software created for them?
> >
> > The answer in every case is that consciously using a machine that is
> > capable of creating a contract can result in legal contract obligations.
>
> No, you are wrong.
What an illuminating argument. Truly educational. You have been reduced to simply abandoning any attempt to base your argument in reason.
You won't look up readily available facts. You won't read cases I cite. You won't cite cases yourself. You won't admit when a simple example refutes bizarre claims you make. In this case you claimed that you had to write the software yourself to be bound by its terms.
> > The person who uses a tool is repsonsible for the outcome.
>
> Of course, this is NOT always true. If the tool does not work as intended,
> or fails, the tool maker may be liable for any damage.
Fine. I've made that clarification myself several times and omitted here thinking that it was understood since we are not discussing tools that malfunction. Instead we are talking about tools that perform exactly as they are specified to perform. You have found a clarification that allowed you to avoid the real issue.
> > It is irrelevent whether you built the tool your self, paid someone
> > else to build the tool for you, or chose a pre-made tool that is
> > available on the market.
>
> All of these things are relevant to the issue, and can be used to show, or
> not show, scienter.
No citation, no credibility. You have many claims, but never, ever back anything you say up. The only scienter relevent here is that inherent in using the tool. Maybe if someone else was harmed how you aquired the the tool would matter towards the type of liability, but that isn't what we are discussing.
> > Three identical
> > triplets aquiring three identical tools by each of the three methods just
> > described are legally indistinguishable when they use those tools in
> identical
> > manner.
>
> Nope. In most circumstances, the intent, knowledge, and actions of each
> triplet is an important consideration.
That was covered by the "use those tools in identical manner".
> > A web server does not obey "commands" from outside users. Computer
> > security built in to every OS in widespread use guarantees that
> > only commands from an authenticated user will be run.
>
> Of course, this is not true by default. It is pretty easy to set up a web
> server that requires no authentication.
No, it's pretty much impossible. You are talking about authentication of the web client. I am talking about authentication of the operating system user when they install, configure, and start the web server. Any modern OS requires an authenticated user to exectute any code or read/write any to a file or network connection.
You are trying to re-interpret HTTP's "request messages" as a "command". That is flat out technically wrong. Read the spec.
> Again, this is a very stupid example. One example of a situation where a
> contract is made is not proof that there will ALWAYS be a contract. In
> fact, the only reason that a contract was made is because the user
> VOLUNTARILY and KNOWINGLY entered his money and chose a beverage. Without
> that intent, no contract exists. Further, the user HIMESELF entered the
> money. This was not a behind-the-scenes transaction between computers.
> This is no evidence to support your crazy notion that the actions of
> software can be used to provide proof of a license.
A web server is much like a copright licence vending machine. A web server is perfectly happy to require payment and if it does so, it is EXACTLY like a vending machine. Unlike a contract, however, copyright licensing law does not *require* consideration (that's why it is a "license" and NOT a "contract"). You can't look to the user to distinguish the two situations -- this is about the vendor's intent to licence. The burden is on the opperator to make sure the machine is configured in accordance with his wishes since it is acting as his agent. The law does not determine what those wishes are.
> You mix up "authorization" with "capability".
No. I'm not. I'm pointing to a piece of text wherein the author's agent stated "OK" in response to my request. Those two letters are 100% traceable to consciously made actions and decisions by the operator. That isn't potential capability, that is a realized, tangible writing traceable to the author.
> [...] The fact that software can do
> something, and that it is not blocked from doing it, is not proof that the
> doing is authorized. And this is the last I will say on this subject. It
> is getting silly to argue the law with somebody who refused to provide ANY
> evidence of his position, and raising irrelevant analogies.
How pathetic. You haven't argued that law at all. I've cited more than half a dozen cases. You've cited none. I've chastized you repeatedly for never citing any support for any proposition you've made. It is the height of hypocracy for you to then turn around and say I've not provided "ANY" evidence for my position.
I quoted Hotmail v Van Money Pie. You didn't read it, and wouldn't answer a question about it because it "depends on the facts". Now you have the audacity to assert that I'm the one not providing any evidence. Sorry, you've lost all credibility with me.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:50 GMT