On 14 Aug 2019, at 1:01 AM, William Herrin <b...@herrin.us> wrote: 
> ...
> >  I would observe that continued use at that point has been held
> > to indicate agreement on your part [ref: Register.com, Inc. v. Verio, Inc., 
> > 356 F.3d 393 (2d Cir. 2004)]
> In which Verio admitted to the court that they knew they were abusing 
> Register's computers but figured Register's contract with ICANN gave them the 
> right. The court would have reached the same decision regardless of 
> Register's notice: You're abusing computers that aren't yours. Stop it.

BIll - 

The particular finding from Register v. Verio that is relevant was that a user 
made aware of applicable terms with each query (even at the end) is sufficient 
for contractual binding after continued use.  

> Specht v. Netscape Communications Corp, on the other hand, found that, 
> "plaintiffs neither received reasonable notice of the existence of the 
> license terms nor manifested unambiguous assent" to the contract Netscape 
> offered for the use of their software at download-time, including assent to 
> settle disputes through arbitration.

Register v. Verio was after Specht v Netscape, and distinguished the situation 
where the user received terms at the end of each response from those cases 
where a user couldn’t reasonably determine that there were any applicable terms 
and conditions. 

> I'll take any bet you care to offer that the latter precedent applies to 
> casual consumer use of ARIN's whois.

That bet is available to you at any time by violating the terms the ARIN’s 
Whois service, so the question to ask yourself is: "do you feel lucky?”


John Curran
President and CEO
American Registry for Internet Numbers

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