However, this finding is inconsistent with the court's other finding that it was the TBAT -- the robot -- that "accessed" the Ticketmaster Web site. Indeed, other than the fact that the robot accessed the site, there was no evidence that the defendants ever saw, read, or otherwise agreed to the terms of use of the site (although, frankly I would be shocked if they had not). Indeed, it is likely that the designers of TBAT closely examined the Ticketmaster Web site when designing their product and service to defeat the technical measures designed to prevent automated and repeated ticket sales. Because the "access" to the Ticketmaster Web site was "unauthorized," Ticketmaster alleged, the "use" of the copyrighted materials on that site were without a license, and therefore infringing.

The court also found it likely that the defendants circumvented technological measures designed to prevent access to copyrighted works (the Web site) in violation of the Digital Millennium Copyright Act, breached the "contract" that was the Terms of Use, and violated the Computer Fraud and Abuse Act (18 USC 1030) by making an "unauthorized access" or "exceeding authorized access" to Ticketmaster"s computers.

But did RMG Technologies really enter into a contract with Ticketmaster? Lots of cases hold that when I reasonably have access to a Web site's Terms of Use, and where such terms are not "unconscionable," my act of merely accessing the site can be deemed to constitute consent to abide by the terms -- an enforceable contract. But what if I -- Mr. Human Being -- never actually went to the site?

Flowers for Algernon

Take the case of poor Leroy Greer.

On April 18, 2007, Leroy called 1-800-FLOWERS and ordered a dozen long-stemmed red roses, with an adorable plush doll and a note that said "Just wanted to say I love you and you mean the world to me" to be sent to his girlfriend in Houston. After the flowers were delivered, he received a lovely "thank you" card mailed directly to his home, acknowledging the purchase and thanking him for his patronage -- a lovely touch.

Unfortunately for Mr. Greer, he was married. You guessed it -- his wife received that "thank you" card, saw it and called the florist, who promptly gave her the name and address of the girlfriend. A lawsuit followed, in addition to the divorce and custody proceedings, alleging that the florist violated its privacy policies by disclosing the information about the girlfriend. Mr. Greer alleged that he asked about their privacy policy over the phone and was directed to their Web site, which had terms of use that "governed the use of the Web site." Because he was ordering over the phone, he figured that he was not bound by the Web site terms of use. He was wrong. The Federal Court in Houston, Texas, found on October 16, 2007, that the language in the Web site's Terms of Use that required all lawsuits to be filed in New York was binding on Mr. Greer. So much for romantic gestures.

However, what this case establishes is that a real person need not have read or even accessed a Web site containing the terms of the contract in order to be bound by its terms. It seems to suggest that as long as you can be aware that there is a Web site, even if you never use it, and that you are aware that that Web site might have terms of use, you may be bound to them. Note that this is directly contrary to the Northwest Airline Web site privacy litigation a couple of years back where people sued the airline for violating its own privacy policy and where the court held that, absent an allegation that a person had actually read and relied on the policy, you could not sue the airline for violating its own policy (for example, if you made your reservation over the phone, you were out of luck).