It is generally a good idea to follow the terms of use (also called "terms of service" or "terms and conditions") of websites you use. In some cases, following terms of use would make vital research or teaching impossible, so it is helpful to consider whether following them is truly necessary.
Terms of use are designed as contracts, but they aren't always enforceable.
Website terms of use are generally designed as a contract between the user and the entity running the website. However, terms of use don't always create a binding contract. If there is no binding contract, the terms cannot be enforced against you. In addition, some contractual provisions are unenforceable even when a contract is otherwise binding. A good resource on whether terms of use are enforceable (albeit from the website owner's perspective) is the American Bar Association Business Law Section's page on Terms and Conditions, currently available via the Internet Archive.
If a website owner decides to take action because you have ignored their terms of use, the most common action would be associated with your account. For instance, they might temporarily suspend or permanently ban your account. They can do this even if the terms aren't an enforceable contract. If the terms are an enforceable contract, they can sue you for breach of contract, but this is quite rare.
If you ignore the terms of use for a resource that is licensed by the Libraries or the University, the vendor may turn off access for the entire University community. Contact the Office of Scholarly Communications and Copyright with questions about license terms for Libraries-licensed content.
Contracts are different from other types of law.
A contract is a set of promises that a court will enforce. It is generally only enforceable by or against those who are party to the contract. Contractual parties are "in privity" with each other. In certain circ*mstances, courts also allow third parties who benefit from a contract to enforce it.
The consequences for breaching a contract are different from the consequences of breaking statutory laws. For example, copyright, a statutory law, provides for plaintiffs to recover actual damages (money equivalent to the harm the plaintiff suffered) and any additional profits by the defendant or to recover statutory damages. Statutory damages in copyright range from $200 per work for "innocent" infringement to $150,000 per work for "willful" infringement. Statutory damages are recoverable without regard to the amount of harm suffered by the plaintiff. In contrast, contract damages are typically limited to actual damages. Damages that are not connected to the amount of harm suffered by the plaintiff are generally not recoverable for breach of contract. For more information on contract damages, see Remedies for Breach of Contract from the University of New Mexico's Judicial Education Center.
When terms of use create a binding agreement, they can change your rights under other laws, including copyright.
Website terms of use sometimes attempt to modify the defaults set by copyright law, including by limiting user's rights such as fair use or restricting use of materials that are in the public domain (not subject to copyright restrictions). It is possible to change these defaults through terms of use, but only if the terms of use are actually a binding contract for the particular user (see above). If the terms are a binding contract, their language determines whether they modify the defaults of copyright law. For example, consider the following two provisions:
- "You are not allowed to access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except with prior permission from Company." -- Language like this eliminates your fair use rights and prevents you from using even public domain content.
- "You are not allowed to access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except with prior permission from Company or when permitted by law." -- Language like this keeps your fair use rights intact and allows you to use public domain content.
Violating terms of use is not enough on its own to violate the Computer Fraud and Abuse Act.
In the past, some courts have held that violating a website's terms of use constitutes "exceeding authorized access," a violation of the Computer Fraud and Abuse Act (CFAA), a federal criminal law. However, the U.S. Supreme Court's 2021 decision in Van Buren v. United States holds that violating terms of use is not enough on its own to violate the CFAA. An earlier case decided in the D.C. Circuit, Sandvig v. Barr, dealt specifically with research. In that case the D.C. Circuit followed the interpretation that the Supreme Court later endorsed in Van Buren.
Additional resources
Building Legal Literacies for Text Data Mining, Chapter 4: Licensing
