Terms of Service

ARCHIVED 2012-04-17, DATE APPROXIMATE · VERSION 20120417_rev01 · COMPARED WITH 20111231_rev01

Full text changes — 20111231_rev01 to 20120417_rev01

COLOUR MARKS THE SEVERITY OF A FLAGGED CLAUSE · + AND − MARK ADDED AND REMOVED

1By Roberto Baldwin Sep 19, 2011 6:02 PM 40,161 89
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34#### Get our top stories
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56#### follow gizmodo
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7Sunday night's announcement from Netflix CEO Reed Hastings that the company [was to be split in two](http://gizmodo.com/5841675/why-netflix-just-cut-itself-in-half) was a bombshell that quickly became a joke. According to Reed, Netflix will continue to stream content, while a new company called Qwikster would handle DVD distribution. Unfortunately Netflix/Qwikster haven't acquired the Qwikster Twitter handle from [weed-smoking gangstaz, Jason Castillo](http://gizmodo.com/5841636/netflix-doesnt-own-the-qwikster-twitter-feed-this-foulmouthed-pothead-does/gallery/1).
8## [It's Not a Crime to Break a Terms of Service Agreement (So It's Okay to Never Read Them)](http://gizmodo.com/5901339/its-not-a-crime-to-break-a-terms-of-service-agreement-so-keep-on-not-reading-them)
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9The question is, could Castillo sell his Twitter account to Netflix and spend the rest of the year smoking fat blunts with the financial windfall?
10We all blindly agree with those much too long Terms of Service Agreements without even reading them, right? So what happens if you like, do something unagreeable with the TOS? According to the 9th Circuit Federal Court of Appeals... nothing. They've ruled that it's not a crime to break a TOS.
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11According to Twitter's Terms of Service, unless you have permission from Twitter, you can't sell your Twitter handle:
12The ruling that breaking a user agreement was totally okay and not a crime was made in the case of US vs Nosal. In it the 9th Circuit said:
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13> **Selling user names:** Unless you have been specifically permitted to do so in a separate agreement with Twitter, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose, where "Services" is defined as follows: Your use of Twitter's products, services and web sites (referred to collectively as the "Services" in this document and excluding any services provided to you by Twitter under a separate written agreement) is subject to the terms of a legal agreement between you and Twitter.
14> Basing criminal liability on violations of private computer use polices can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved. Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they'd better not visit ESPN.com. And sudoku enthusiasts should stick to the printed puzzles, because visiting www.dailysudoku.com from their work computers might give them more than enough time to hone their sudoku skills behind bars.
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15Twitter won't comment on private accounts, but I'm sure if Netflix and Jason Castillo approached Twitter with a deal that made sense for both parties, they would be more than happy to allow Castillo to sell his account.
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17If Twitter refuses to allow Jason to sell his handle to Netflix, there's always the consultant route. In order to get around Twitter's TOS rules against selling names, [CNN hired James Cox](http://www.webpronews.com/buying-and-selling-twitter-accounts-2009-04), the original owner of @CNNbrk, as a consultant. Part of his consulting contract stipulated that he would hand the reins of @CNNbrk over to CNN.
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19Also: According to a search of the USPTO's database, Netflix either hasn't trademarked the name Qwikster yet, or they did so recently enough that it hasn't been fully processed yet. In either case, it's just another clue that this entire process was a rush job. One that might just greatly benefit the internet's new favorite foul-mouthed, pot-smoking Elmo.
16The 9th Circuit also cites, [as the Awl notes](http://www.theawl.com/2012/04/the-ninth-circuit-lying-on-social-media-websites-is-common), how it's technically breaking an user agreement when a minor uses Google or when people share their Facebook passwords but the government won't bother prosecuting such minor violations. Awesome, now we really don't have to ever read a TOS Agreement ever again (but of course, you're still subject to liability under a civil suit). \[[US Courts](http://www.ca9.uscourts.gov/datastore/opinions/2012/04/10/10-10038.pdf) via [The Awl](http://www.theawl.com/2012/04/the-ninth-circuit-lying-on-social-media-websites-is-common) via [TNW](http://thenextweb.com/law/2012/04/11/good-news-breaking-that-tos-wont-land-you-in-jail/), Image Credit: [zimmytws](http://www.shutterstock.com/gallery-50527p1.html)/[Shutterstock](http://www.shutterstock.com/)\]