20 March 2007

Are Legal Booby Traps Legal?

Suzanne Shell, most recently in the news for receiving unauthorized practice of law sanctions from the Colorado Supreme Court in connection for her advocacy on behalf of parents facing termination of their parental rights, is back in the legal news again.

This time, it is in connection with a Colorado lawsuit against an internet archiving company and its board of directors, involving her website. Shell, of course, represents herself in the case. She claims a right to sue because the company archived her website without paying the price she insisted upon on the face of her website. About a month ago, a Colorado district court ruled that her suits for conversion, civil theft, and state and federal organized crime counts failed to state a claim upon which relief could be granted, even without considering any disputes of fact raised by the company.

Three individual parties in the case (the board of directors of the archiving firm), who faced only the organized crime counts, were not formally dismissed in the same order, but the ruling implies that they should be entitled to a dismissal on the merits, because the charges against them were held not to state a claim against another necessary party to the claim. A motion to dismiss the claims against them on the merits and for lack of personal jurisdiction is pending.

But, the Court left standing Shell's claim that there was a breach of contract against the company, at least until the facts about contract formation can be hashed out further. The Court also declined even to determine if the common law of contracts or the Uniform Commercial Code applied to the case.

Shell claims that the company entered into a contract by continuing to archive her site on an automated basis when the site contained a notice that doing so would create a contract. The company, obviously, disputes that claim.

In effect, she left a legal booby trap on her website, and this archiving company ending up triggering it. Now, the world gets to see if the booby trap works. If it does, it would destroy Google and every other internet search engine's stock price overnight.

The fact that the terms of the alleged contract involve confiscatory amounts of money and other legal impediments mitigates against finding that there is a contract, or in the alternative, that the contract is void because it is unconscionable or an improper penalty parading as a liquidated damages clause, as a matter of law.

It is highly unlikely that Shell will prevail on the merits, probably before the case goes to trial, although precisely why isn't completely clear.

Hat Tips: wendy at Colorado Confidential, slashdot, Information Week, and Eric Goldman's Technology & Marketing Law blog.


Anonymous said...

It was and is a scam. She intentionally left out the robot text. She has a degree in computer programming. Check this out:

145|Shell, Suzanne||14053 Eastonville Rd|Elbert|CO|80106||||Freelance Writer, Accountant, Upholsterer, Computer Programmer|BOOK:Profane Justice:A Comprehensive Guide to Asserting Your Parental Rights|Yes||Degree in Computer Programming & Accounting||Lived in Colorado Springs 1975-1978. Returned in 1982. Lived in Elbert County 1991-1996. Now live East of Black Forest.|Roswell, New Mexico|3-7-56

Andrew Oh-Willeke said...

The robot text issue is an interesting one. In the web development industry it is an established community norm, but it is a norm that has developed outside of the intellectual framework of the legal world. Does the fact that you can stop someone from doing something easily impose on you the duty to do it that way?

Legally, the issue is what must happen to create a contract, and in an era of electronic agents, many of the issues are open questions. When potential contracting parties are both robots and humans, can both be bound by an offer than can be read only by humans?

This particular contract was outrageous and designed to test the law when an unwary person walked into it. But, easy cases make bad law. Is this contract bad because its terms are harsh? Or, is it bad because of a lack of true intent to enter into a contract? Or, is it something else? Getting the right answer for the wrong reason could do as much long term harm to internet commerce as getting the wrong answer.

Anonymous said...

In Suzanne Shell own words that she has a degree in Computer Programming....
billy Wiseman
Yep - my degree is in Accounting and Computer Programming. Darn. Sucks for you. Why? Because I specialized in business and tax accounting. I was as good at that as I am at this. You think you will get MY IRS records? Not. I would hardly use past income to prove my losses on the exploitation of new property. Past income has no bearing on the income from a new property which I exploit. ESPECIALLY if my RIGHTS OF FIRST RELEASE were infringed - like AFRA, Ann, Cygan and the Billy Monster did.
I would use my contract terms and fee schedules. If my property was misappropriated or stolen, all I have to prove is the value of that property and those who stole it get to pay what I would have charged for it. Darn, Bill & Co. . .sucks for you. I've already proven it in the case against Swallow. I know exactly how to do it, now.
I wonder if they will get it yet. . .just how deep a hole they have dug for themselves. If they did, I would see a delagation on their knees at my front gate pleading for permission to enter my property so they could negotiate with me mitigate their damages.

Just try and sue me - any of you STMs. YOUR HANDS ARE SO UNCLEAN THAT NO COURT IN THE LAND WILL HEAR YOUR CASE. Don't believe me? Still gloating? I trounced Tower and he doesn't even know it yet. His lawsuit will NEVER get to the merits because there ARE no merits AND because I argued he has unclean hands. It will be dismissed and he will owe me costs and fees.
Suzanne. . .planning a trip to the bank.

JohnDiddler said...

she must have skipped class when they lectured on robots.txt.

Anonymous said...

One thing about computers and the internet, you learn something new every day. She (even though she talks in the third person) is constantly telling the world what a brilliant person she is, that she researches every thing. Sounds like a set up to me.

Anonymous said...

Robots.txt didn't exist in 1984-85. This case settled.