These are issues that have been faced before. Even if the ownership of the sidewalks and roads are obvious, who owns the tunnels underground, or the wires above? How far up does ownership exist? Who owns a view of the stars? Who owns the frequencies used to broadcast TV or radio?

My interpretation of the clause is whether something is used primarily for presentation to the user and SEO is an afterthought. Is Google hypocritical to limit peoples use of their network while demanding that others remove all limits? I say YES. Does that justify being hypocritical ourselves? I say NO.

1) Many mention the TOS on their site. What about “robots.txt”? Aren’t we kind of irked at the robots that are not polite and ignore our stated wishes?

2) While the TOS may not be enforced today, what if the tides turn? Is fighting Google a good idea?

3) Google has lost some market share; is it still too big to fight? Is it alright to step on a midgets toes?

You said…

“I would be most interested to hear what this might be, legally speaking, seeing as we are not paying for the service, nor entering into a written contract with Google, when we use their services.”

That is the crux of the matter isn’t it? If we are legally and/or morally bound (for purposes of this discussion) to Google’s TOS (or any web site TOS for that matter) just by visiting the site I mean.

I personally don’t think that is legally defensively in a court of law. Anywhere.

If any court adjudicated that visitors to a site are legally bound just by virtue of visiting a site to a TOS agreement as a legally binding contract…well…it would open to the floodgates to all manner of TOS ridiculousness.

I might create a TOS saying that by visiting my site you are legally obligated to pay me $1 for every page you see on my site. That is my charge. And that is what you agree to based on my TOS. Just for visiting my site. That if you don’t like that you can go elsewhere.

If TOS agreements are legally binding contracts and if visiting a site is seen to legally be giving consent, even if just implied, to such an agreement then I am perfectly within my rights to exert such a TOS upon every single site visitor. The more the merrier.

I mean if Google’s TOS is a legally enforceable contract between them and visitors then my TOS would also be.

If the basis for entering into legally binding contracts now becomes just a visit to a web site then we have turned contractual law on it’s head. We have entered into a topsy turvy world of agreements by implication and not by willful decision to enter into agreements either by a signature or by at least checkmarking a box indicating that we agree over the internet (which itself may not be legally enforceable either).

And every one and their next door webmaster will have a different TOS to which we are then legally bound.

Can you imagine a situation where every house on a block would have a TOS agreement for visitors to the sidewalk in front of their house?

This house (i.e. website) would have this TOS and another house this one and a third one, a different TOS. On down the block. All legally enforceable contracts that would be entered into by implied consent just for walking on the public sidewalk in front of one’s home. Meaning that if one walked on the sidewalk one gave an implied consent to an agreement that was not even clearly laid out and shown to every sidewalk walker.

There isn’t even a link to Google’s TOS on the front page of their site anymore (at least on the front page of Google.com). Yet Google expects every site visitor to have given implied consent to a supposed legally enforceable contract that regular users (i.e. sidewalk walkers) don’t even see? That’s completely ludicrous.

It isn’t even an issue. Completely unenforceable as a legally binding contract in my opinion.

Regarding the automated issue…even that is full of holes. When I enter a search phrase into Firefox, say “back tuxedos” as an example, Firefox takes that phrase, adds appropriate Google query parameters to it, and sends the query “http://www.google.com/search?btnG=Google Search&q=black tuxedos” on my behalf to Google. If that isn’t automated I don’t know what is.

Even the browser is an automated means of accessing Google albeit one that Google has no problem with.

Like you rightly point out what Google means is to access Google through a script or crawler in a way that does not return the search results in a Google approved way. But once the results are asked for and returned I believe we can do what we want with them on our own computers.

Please bear in mind that I am not advocating that everyone go around and completely, willy nilly ignore all TOS rules. Not at all. I am simply pointing out the ridiculous state of current TOS agreements and expectations. I personally do try and respect the various TOS agreements, where I can reasonably do so but, even Google itself does not enforce it’s own. So why should anyone be expected to abide by the letter of their TOS? Doing so will simply allow competitors to use software to check rankings or whatever while Google looks the other way. Leaving the person who abides by the letter and the spirit of the TOS in the dust in the race for high rankings. That’s not fair or right.

Carlos

Carlos made some great points about ToS, in particular I’d like to address this one:

“First of all a person cannot be forced to agree to a TOS by visiting a site….”

The relevant part of Google’s ToS is this one:

2. Accepting the Terms
2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
2.2 You can accept the Terms by:
(A) clicking to accept or agree to the Terms, where this option is made available to you by Google in the user interface for any Service; or
(B) by actually using the Services. In this case, you understand and agree that Google will treat your use of the Services as acceptance of the Terms from that point onwards.

Google’s ToS 2.2(B) states exactly the opposite of what Carlos asserts: that you can, in fact, be bound by a service provider’s ToS IMPLICITLY, by simply USING the service offered – in this case, their search engine and ranked results outputs. Whether this is, in fact, in any way a legally binding provision (a la the “sidewalk usage clauses” of Carlos’ hypothetical council) is another matter. I would be most interested to hear what this might be, legally speaking, seeing as we are not paying for the service, nor entering into a written contract with Google, when we use their services.

Regardless of this, however, once the results are in your hands, Google is no longer providing you with a service: once they have provided you with a search output, it is a browser that displays that data. In theory, if you performed a search by a non-robotic, manual method, then used a robot to query the output – which is a file on your own computer/server – then Google has no cause for complaint. It would still be a bit painful to do for hundreds of terms, but it does sort of shows how ridiculous is Google’s provision: once they have executed the search for you, you ‘own’ the results. I also agree with Carlos that Google’s “Service” does NOT include the browser interface used to view the results provided by their Search Engine Service – or any other visualisation/presentation method, for that matter.

One other point: in Australia, the Telecommunications act provision for SPAM is that prior to sending any email, a direct advertiser must satisfy three conditions, one of which is providing an opt-out clause. As Google has failed to do this for its ToS, (ie, “acceptance of the Terms from that point onwards” with no option to opt out) I suspect that they could be in contravention of Australian Government regulations. Failing to provide an overt, transparent mechanism to enable SEOs to enter into other agreements could also constitute a breach of the Good Trade Practices Act, though I am not familiar with that one so don’t quote me.

There are NO legitimate ways approved by Google for getting SEO valuable information from Google that one needs in the course of trying to get their sites to rank higher. Backlink analysis…Google’s backlink count is a joke. Number of competing websites that show up for a given phrase in a Google search…NOT provided. PR as an indicator of how competitive a site is and how tough it will be to outrank them…only provided through their invasive Google Toolbar as far as I know and then only for one site at a time.

Name a single metric that is useful to SEO’s made available through Google’s approved channels and I will eat my words (to the degree that I am wrong).

It’s a comforting thought that good ol’ Google, who can do no evil in the eyes of so many, makes available what we need publicly and without unreasonable restriction but…that just ain’t so my friend! They will not give out information that allows the rest of us to more easily game or manipulate their flawed algorithm to achieve a higher ranking. They won’t cut their own throat.

Carlos