In your scarf example, you gave me the scarf after you gave me the terms.
Let me flip it on you. Let's say you bake me a cake and give it to me. The following week you say, "Hey, you need to go to the store and pick up some cough medicine for me, because I gave you that cake." If I then refuse, would it be valid for you to claim I stole your cake?
In your scarf example, I also probably indicated to you that I would accept those terms. Suppose that I told you, upfront, before you gave me the scarf, "No, I'm not going to pick up cough medicine for you, period. If you hand me this scarf, I'm still not going to the store."
If you still handed the scarf to me after I made it clear I wasn't going to the store and made no effort to take it from you by force, could you claim that I stole from you?
Funnily enough, the second scenario is not entirely fictional. I remember a particularly scummy practice that businesses used to do when I was growing up where they'd mail you an unsolicited physical item and then demand payment or return of the item.
I don't remember if it was illegal at the time or if it became illegal later, but the basic gist was "if you post something to another person in the mail, you can't later demand that they send it back to you or pay you."
On the modern web, I connect to the NYT to read some text, and they return a bunch of unsolicited code that I never agreed to request. The idea that I have the obligation to run code that I never requested from the server (literally, my ad blocker prevents the request from being made) when I never agreed to any terms surrounding that code is... crazy to me. In any other domain we would call that crazy.
> In your scarf example, you gave me the scarf after you gave me the terms.
I didn't intend that interpretation. However, if you believe that's the crux of our disagreement, then we in fact do not disagree. If a site does not make clear its expectations, then there's no theft. If they do, then there is. And certainly you cannot be expected to turn off your adblocker before seeing those terms - that's silly. Uninformed consent is not consent. But once you are informed, to proceed with content consumption without abiding the clearly stated terms is theft.
You must get somebody to agree to the terms, not just state them.
If you say "I'll give you this scarf if you go to the store for me" and then drape it over my shoulder, I haven't broken any agreement or stolen anything if i walk away. You gave me your scarf without any agreement on my part and will have a hard time enforcing that agreement in court.
Similarly, I suspect that the "by using this site you agree to..." declaration that is widely used has fairly limited legal efficacy precisely due the the lack of explicit agreement.
Even if I do agree to your terms, if I don't go the store it STILL isn't theft. I am merely in breach of contract and you will have to go to court to get them to force me to return the scarf you gave to me.
> Similarly, I suspect that the "by using this site you agree to..." declaration that is widely used has fairly limited legal efficacy precisely due the the lack of explicit agreement.
The case i'm considering here is one of explicit agreement. E.g. checking a checkbox.
> Even if I do agree to your terms, if I don't go the store it STILL isn't theft. I am merely in breach of contract and you will have to go to court to get them to force me to return the scarf you gave to me.
Breach of contract and theft are often the same thing. I'm not sure what distinction you're drawing here.
Let me flip it on you. Let's say you bake me a cake and give it to me. The following week you say, "Hey, you need to go to the store and pick up some cough medicine for me, because I gave you that cake." If I then refuse, would it be valid for you to claim I stole your cake?
In your scarf example, I also probably indicated to you that I would accept those terms. Suppose that I told you, upfront, before you gave me the scarf, "No, I'm not going to pick up cough medicine for you, period. If you hand me this scarf, I'm still not going to the store."
If you still handed the scarf to me after I made it clear I wasn't going to the store and made no effort to take it from you by force, could you claim that I stole from you?
Funnily enough, the second scenario is not entirely fictional. I remember a particularly scummy practice that businesses used to do when I was growing up where they'd mail you an unsolicited physical item and then demand payment or return of the item.
I don't remember if it was illegal at the time or if it became illegal later, but the basic gist was "if you post something to another person in the mail, you can't later demand that they send it back to you or pay you."
On the modern web, I connect to the NYT to read some text, and they return a bunch of unsolicited code that I never agreed to request. The idea that I have the obligation to run code that I never requested from the server (literally, my ad blocker prevents the request from being made) when I never agreed to any terms surrounding that code is... crazy to me. In any other domain we would call that crazy.