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

That said, most major tools out there don’t use the API methods because they are inferior to scraping data off of pages the old fashioned way. Google needs to enhance access to their systems and charge a small fee for access. Problem solved…

You bring up some good points but as you say the question you posed is “are we an honest person if I violate Google’s TOS”.

Honesty definitely implies a moral standard by which to judge one’s honesty.

Morally speaking if I agree to abide by something I must, if I am to be morally honest and walk with integrity, abide by that agreement. And I do.

Question is…when I go visit Google, am I agreeing to their TOS?

If I am not agreeing to abide by it then it cannot be rightly said that I am being dishonest by not abiding to something I never agreed to.

I do not agree with their TOS or any other TOS anywhere on the internet that forces upon me an agreement that I do not make when visiting their publicly accessible internet site.

They say I agree to it by virtue of visiting their site but I do not in fact agree to it. Such an agreement cannot be forced upon me either morally or legally.

Any more than I can be legally or morally be “forced” to agree to the whims of TOS writing lawyers who put TOS’s on things in real life like using public toilets, hiways, sidewalks, or even the very public air we breath.

There is nothing illegal or immoral or wrong about me visiting their site without agreeing to their TOS. They make their site publicly accessible over the internet. It is accessible to me whether I agree to their TOS or not, strictly speaking (though Google would of course like to limit such access only to those who agree to their TOS).

If they wish to limit access to their site to only those visitors who agree to their TOS then they need to limit access to their site only to those people who check mark an agree button on a login in type of form. Where such an agreement is not forced upon people publicly visiting their site just because they say it is but rather because a visitor makes a conscious and aware choice to agree to their TOS to get access to search through Google.

That is the way real world agreements are made in real life and that is the only way that such a TOS “agreement” would be legally enforceable. Morally speaking I am under no more obligation to abide by their TOS as a result of visiting their publicly accessible site than I am to abide by a cities made up sidewalk “TOS” for walking on a public sidewalk.

I mean I may need to rethink this but that’s the way I see it at present.

Not to mention that if I put a counter TOS up at my site (something I am seriously considering doing to show the ridiculousness of such TOS’s) and Google accesses my site then I am freed from even the slightest perception of my having to abide by their TOS just for visiting their site (when my TOS disavows such an agreement in a counter TOS).

Carlos

But again, my concern is not about legality, ethics, whether or not it’s ridiculous (I think it is, but that’s besides the point), or whether I’ll ever be punished in any way–it’s a moral question: Can I consider myself to be an honest person if I violate Google’s TOS?

There may be some way of looking at this that let’s me out of the moral quandary, but short of Google saying “No, we’re fine with services like WebCEO or SpyFu, that’s not what we’re talking about with section 5.3 of the TOS” I don’t see any way around it. I wish we could get Matt Cutts or someone official from Google to sound in on this.

I love Chromium, the underlying open source browser that powers Google Chrome. I don’t think I will ever use Google Chrome (even it it comes out for Linux). I don’t like agreeing to EULA’s if I can help it as I take my agreements seriously.

You know I was thinking of this subject a bit more.

What would happen if I put a TOS at my site that said something to the effect that by visiting and accessing my site (personally or through a bot representing you) you agree to release me from any agreement to abide by your TOS altogether? Hmmm…interesting.

Would that legally obligate Google to release me from their TOS? Hmmm…maybe so. It’s an interesting thought. I wonder how the courts would rule on such a conflict of TOS’s?

I think web site TOS’s are utterly ridiculous and probably unenforceable. It’s like if some city decided to write a TOS about walking on a public sidewalk and claimed that everyone who stepped on that sidewalk would enter in a binding legal agreement to…let’s see…mail them a $100 bill.

Would that be enforceable? Of course not!

Yet web sites actually expect visitors to enter into binding legal agreements no differently when “stepping” on their sites? Ridiculous.

The internet is a public information hiway. Just as real hiways do not have highway TOS’s prominently displayed at their entrance ramps that we agree to by using their hiway so likewise internet sites are publicly accessible through a public thoroughfare. Their TOS’s are as worthless in my opinion as a TOS for walking on public sidewalks or entering a hiway would be in real life.

Carlos

A couple of points…

First of all a person cannot be forced to agree to a TOS by visiting a site. If Google wants to insist that everyone who visits their site agree to their TOS that is their right to insist on that of course but their insistance does not in any way, shape, or form obligate someone who visits their site publicly to agree.

That’s like saying that that everyone who steps into Wal-Mart MUST agree to their Terms of Visit (if there was such a thing) before being allowed to use the bathroom inside the store or some such thing. Or that everyone driving up the drive through at McDonald’s MUST agree to a McDonald’s terms of use before being allowed in their drive through.

Such a thing would be ludicrous in the real world and should likewise be ludicrous in the online world. If you make a site like Google and make it publicly available for all the world to visit whenever they want you cannot expect to have everyone who visits enter into a legally binding contract just because they visit you on your very public site.

Second point…they talk of not accessing their services through other than their interface. What is their interface exactly? Is it the Internet Explorer browser? NO! Is it the Firefox browser? NO! The browser is the browser which doesn’t even belong to Google. Their interface is that HTML page which can be viewed in a browser. Their interface uses the HTTP protocol. That is how you communicate with their interface. That is the prescribed manner of accessing their interface.

If I use Lynx like so….

lynx -dump “http://www.google.com/search?hl=en&q=black tuxedos” | grep Results | awk -F “of about” ‘{print $2}’ | awk ‘{print $1}’

I can get the number of pages that result from this query. Am I accessing their service through their interface? You bet! Would Google consider this automated or not? Hard to say. They don’t answer very quickly if at all so we are left to determine this ourselves.

What is automation? Without a browser one would have to enter HTTP protocol terms into a command prompt. If we use a browser instead are we accessing Google through automated means? Yep! We are. The browser automates our request. Would Google consider such a thing automated? Nope. Why not? Beats me.

Things are not as clear cut as you might think.

Carlos