| As for the character of the case law, that's primarily because people don't go to court over things like this, they just file DMCA notices which are rarely litigated very far. The cases are all arbitration clauses because the parties had something else they wanted to sue for and they had to overturn that clause first. As a reminder, Zillow cannot, here, file a DMCA notice because they lack the copyrights with which to do so, and pretending to represent a copyright owner you do not in fact represent is contrary to the statement you sign under penalty of perjury when filing a (non-defective) DMCA notice. You never did address 15 USC 45b, either, which further undermines their claims of ToS enforceability -- https://www.law.cornell.edu/uscode/text/15/45b And I'm really not clear why you think one's first amendment rights would have less weight than sixth amendment rights? You haven't really articulated a theory as to why one is important and the other is not. If you're going to pick apart an argument why not Zillow's? Their claim under the CFAA is ridiculous and it was already shot down in US v. Nosal. "The Ninth Circuit's first ruling (Nosal I) established that employees have not "exceeded authorization" for the purposes of the CFAA if they access a computer in a manner that violates the company's computer use policies—if they are authorized to access the computer and do not circumvent any protection mechanisms." https://en.wikipedia.org/wiki/United_States_v._Nosal |