Can anything go into a website&#39;s TOS just like a normal contract? To my understanding a website's terms of service is just like a regular contract. You agree to it by click "I agree" or simply by using the website. So hypothetically could a website scam people by including a term in the TOS such as "you will pay us $5.00 per page you visit in our domain"? Realistically people usually don't read TOS thoroughly for each website they go to.
You mean like this? Of course, a website can charge you to access its pages; many do. And yes, clicking on an "I agree" button can form a valid contract (just visiting the website can't). Historically, the law has adopted the position that if you sign it (including by clicking "I agree") you read it, you understood it and you agreed to it. It's hard to imaging how it could be otherwise because allowing people to get out of contracts by saying "I never read it" is problematical as well. However, there are two things that mitigate against the type of term you suggest; one practical and one legal. Practical: How do they get your money? They can ask for your credits card details and, if they do and you give them a court will probably come to the conclusion that you knowingly and willingly agreed to pay for the service. However, if they don't have any method of getting money from you, they would have to take you to court to do so. There are a number of practical problems with this like: who are you? where are you? Which court can they sue you in etc. Legal: At common law, there exists the doctrine of unconscionability that describes terms that are so extremely unjust, or overwhelmingly one-sided in favour of the party who has the superior bargaining power, that they are contrary to good conscience. Such terms are legally unenforcable. Further, in many jurisdictions, consumer protection law often give additional protections up to and including not enforcing terms that are merely unfair not just unconscionable.
A website's Terms of Service can be or include either or both rules and terms of contract. Which part is what depends on the circumstances and whether there is a contract at all. Like in case of any physical venue where the owner is free to impose rules on anyone wishing to visit the venue, a website owner is free to impose rules on what the visitors can and cannot do while visiting the website. If you are the owner of a physical store, you may require the visitors to take off any helmets or sunglasses when they enter, and/or present their bags for inspection when they exit. These are rules, or conditions of entry. Similarly, you may require your website visitors to be over certain age, only use certain devices/software for accessing the website, not to engage any robots/scrappers etc. As soon as a contract between you and the visitor is formed, the relevant parts of the ToS may well be terms of the contract. For example, if visitors buy something in your store/on your website, the clauses re shipping, returns/refunds and warranty will be such terms.
It sounds like you may be conflating ownership and control. It's very common for an affiliate to have a contract with the parent company. These terms can be very detailed - it may give the parent company the right to sell the affiliates widgets, but not sprockets (as those are sold by another parent company). As such, you can't really measure &quot;control&quot; as a simple percentage. So, when the parent is selling widgets, it can reasonably claim control over its affiliate. The buyer does not need to know the exact terms governing the relation between parent and affiliate.
I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios. As a starting point, one needs to bear in mind that: a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing. Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms &amp; conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)). The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues: Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about &amp; accepted that condition. Does the house provide alternatives for lawful &amp; informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause". Is the house owner realistically able to prove that use of the walkway by lawful &amp; informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))? Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit &amp; loans? These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided. Lastly, as a side note, the presumption that a person reading the poster and walking in the intended area does not thereby receive consideration is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed.
Can you unambiguously, legally, and conclusively determine what is and is not a "porn site"? I'm sure many are easy... but what about that "Swimsuit modeling" site, or the "Artistic Nudes" site featuring classic French Renaissance paintings? There will always be a grey area. What makes a "site" in a legal sense? Consider all the blog sites filled with user generated content: If just a few pages out of tens-of-thousands are hardcore, indisputable porn, would you require the entire domain to be classified XXX, even if 99% of its content is completely innocent? Who would enforce this? Are you proposing an "Internet Police" force to review all new domain names and their content before they get approved? That is called "Prior Restraint on Free Speech", and is established law. Suppose a site does get approved, then immediately changes the content of their pages from Cooking Recipes to hard-core porn. Who is going to review and approve every update to every website, when sites are updated constantly?! Maybe you're proposing that any individual who finds porn on a .ORG site has the right to sue for damages? This would likely clog the courts with endless vigilante lawsuits about what content belongs on which domain. This is a flat out horrible, poorly thought out idea.
Short preface: You might want to consult with a lawyer if what that website does really constitutes trademark infringement. But the question did not ask for that. It asked what to do if you want to send a C&amp;D to a website without contact information. That's the question I will answer here. Whether or not the C&amp;D letter itself has merit in this particular situation is another question, and probably one which would violate our &quot;specific legal advise&quot; rule. You can use a whois-database to find the public information on who operates a domain. Doing so for the domain in question yields that the contact information of the actual domain owner was &quot;Withheld for Privacy Purposes&quot;. That means the domain was registered through a domain-by-proxy service. The postal address in Iceland you see in the record is the address of that service, not of the domain owner. But you can see the registrar which hosts the domain: &quot;Name Cheap Inc.&quot;. So that's somewhere you can address complaints to. If you cause them enough problems, then you might be able to get them to take the website down. Those discount webhosters don't make nearly enough money per customer to fight their legal battles for them. Just reading a C&amp;D letter already costs them more than hosting a website for a year. So they might just fire the customer to avoid the trouble of dealing with you. But then the website might just reappear hosted by some other company a day later and you are back at square one. The registrar should also be able to tell you the real identity of the person who operates the website. However, they will likely not tell you without putting up a fight, as revealing private information without being legally obligated to might make them liable for violating a bunch of privacy laws. Ask your lawyer if there is any hope to get a subpoena forcing them to give you the identity.
You can't, in general, know whether a distributor of a work has permission to distribute, or is a pirate site. I verified that they have posted an illegal copy of a work that I created, and I know that I did not grant permission to them (or anyone) to infringe my copyright. Both hosting and downloading works without permission is a violation of copyright law, so both parties are liable. Downloaders may erroneously rely on the "I didn't know!" defense, which in the US carries no legal weight. Even so, if you download my book, it will probably cost me vastly more to sue you for infringement than the damages that I might be awarded over your infringement. Usually, copyright holders go after the pirate sites, and only rarely go after particularly egregious serial downloaders.
You're misreading the law. You need to keep reading the section you referenced (emphasis added): The disclosure...shall be made in writing and delivered through the consumer’s account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer’s option if the consumer does not maintain an account with the business Thus, the option to have the disclosure sent by mail only applies to consumers who do not have an account with the business. Since presumably a large number of sites only maintain personal information for users with accounts, such sites need not provide a mail option. Further, it doesn't say there needs to be a button: you just need the ability to say you'd like it mailed to you in the request somehow, and then they need to comply when you do.