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I want to sell software that automates user activity on a website. Automated interaction is against the website's Terms of Use, as you would expect.

Is it possible to legally sell someone a tool to automate certain aspects of their use on a website if it breaks said website's Terms of Use?

If and when a user is punished for automation, they might want to come after me for creating and selling them the software. Assuming I am able to sell this tool legally, are there terms I can add to a EULA, Terms of Use, or something similar that protect me from users who were punished for automation, from coming after me?

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  • Another consideration is whether the website operators might come after you for tortious interference. There's nothing you could put in your terms of use that would protect you from that, since the website operator never agreed to those terms. – Nate Eldredge Feb 18 '20 at 21:25
  • If I were to make it explicitly clear that they would be breaking Terms of Use with the site, and I don't convince them otherwise... Wouldn't the responsibility be theirs? They're paying for access to the tool, and they're willingly using it. – Maskevich Feb 18 '20 at 21:32
  • Is the purpose of the tool to allow automation of a particular website, or is it just possible to use it that way? – IllusiveBrian Feb 18 '20 at 22:34
  • The entire and only purpose is to allow users to click a button, that sends multiple button clicks to the website. All is done from their browser, under their control entirely. – Maskevich Feb 19 '20 at 7:47
  • After another look, this Tortious interference term might be the thing that stops me from doing anything here. Seems to be the answer, but unfortunately it's in the comments so I can't mark it as such. @NateEldredge – Maskevich Feb 19 '20 at 14:41
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No

Unauthorized access to a computer is a crime in most jurisdictions. Producing programs that do that is also a crime in most jurisdictions. For example, says in s308G of the Crimes Act 1900:

(1) A person who produces, supplies or obtains data--

(a) with the intention of committing a serious computer offence, or

(b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person),

is guilty of an offence.

: Maximum penalty--Imprisonment for 3 years.

(s308 includes a program in the definition of "data")

So what you are proposing is a crime. You can't have a contract that requires the commission of a crime so your ToS are unenforcable. Fortunately, because you and your customers are engaged in a joint criminal enterprise you don't owe a duty of care to each other so they can't sue you. No doubt that will be a comfort in prison.

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