Is this an example of theft of service?

Question

There is a website that offers each member one free video lesson (of the member's choice) per week. To get more video lessons per week, one needs to pay to upgrade his/her account to a premium account.

There seems to be a loophole: If one logs in his/her account on two devices simultaneously, he/she can get access to one free lesson on each device and the member can choose two different lessons. By using more devices, one gets access to more video lessons without upgrading the account.

Is this considered as a "theft of service"? If so, will there be any consequences on the user, other than risking his/her free account to be closed by the website?

Answer 1

You should start with proposed consequences, which do or do not involve the courts (cancelling the account). If the consequence involves the court, decide whether you want to pursue criminal sanctions, or are we talking lawsuit. The easiest option is the provider closing the account for violating the TOS – yes, they can do that.

The hardest case and also best-defined is criminal prosecution. In Washington state, under RCW 9a.56, there are various kinds of theft. There is no specific crime "theft of services". There is a crime of theft of subscription television services defined in RCW 9A.56.220, but you're not talking about that. The law also creates a civil cause of action under RCW 9A.56.250 (the provider can sue the thief). Closer to home is RCW 9A.56.262, theft of telecommunication services

A person is guilty of theft of telecommunication services if he or she knowingly and with intent to avoid payment: (a) Uses a telecommunication device to obtain telecommunication services without having entered into a prior agreement with a telecommunication service provider to pay for the telecommunication services; or (b) Possesses a telecommunication device.

Also consult the definitions of the terms:

"Telecommunication service" includes any service other than subscription television service provided for a charge or compensation to facilitate the transmission, transfer, or reception of a telephonic communication or an electronic communication

"Telecommunication device" means (a) any type of instrument, device, machine, or equipment that is capable of transmitting or receiving telephonic or electronic communications; or (b) any part of such an instrument, device, machine, or equipment, or any computer circuit, computer chip, electronic mechanism, or other component, that is capable of facilitating the transmission or reception of telephonic or electronic communications

The website fails to satisfy the definition of "telecommunication service", so it is not covered as a crime. Therefore, also, there is no lawsuit for "theft of services" in this scenario.

That does not mean there is no lawsuit, it means that you would need to get a lawyer who know the appropriate cause(s) of action. This AG opinion letter addresses intentional dine-and-dash, specifically whether that violates RCW 4.24.230 ("liability for conversion"). His take-away conclusion is that because the law does not "explicitly provide for coverage of the fraudulent taking of 'restaurant services,' we are of the opinion that this civil penalty law does not apply in the situation you have described. We thus answer your question in the negative". It may be that in some common law jurisdictions this could be covered under "conversion" but Washington relies more on statutory law.

Instead, criminal sanctions (for dine and dash) could be pursued under RCW 9.45.040 (frauds and swindles), RCW 19.48.110 (obtaining lodging etc by fraud) and the aforementioned chapter 9A.56. But RCW 9.45 and 19.48 don't apply at all to your scenario, and 9A.56 doesn't have a "theft of services". There is a crime of unmodified "theft" defined in RCW 9A.56.020 which is

(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or (b) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or (c) To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him or her of such property or services.

However, there is a defense against such a charge if "The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable". As far as I can tell, no lawsuit has succeeded in this state under the theory that willful violation of a website TOS constitutes "theft".

A very simple, probably universally available legal theory is available – the user cases financial damage to the service provider, who may be entitled to compensation.

Answer 2

In some jurisdictions this would be theft of services, or some other variant of theft.

Theft of services often includes accessing utility services without payment, particularly by evading metering; "turnstile jumping" to avoid payment for transportation services; watching a movie or performance (such as in a theater, concert, or circus) by evading the required payment.

In some jurisdictions there is no separate crime of "theft of services", it is simply one fact pattern for a crime of theft or larceny.

In ohio, for example, Section 2913.02(A) of the Ohio Revised Code provides that:

No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: ...

...

(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;

which would seem to apply to the situation described in the question. However Section 2913.01(E) provides that:

(E) "Services" include labor, personal services, professional services, rental services, public utility services including wireless service as defined in division (F)(1) of section 128.01 of the Revised Code, common carrier services, and food, drink, transportation, entertainment, and cable television services and, for purposes of section 2913.04 of the Revised Code, include cable services as defined in that section.

It is not clear that that includes web subscription services, but since the provision says "include" it might, even though they are not explicitly mentioned.

In any case, such conduct is almost certainly a breech of the subscription agreement or TOS between the service provider and the subscriber (assuming, as the question seems to, that the person logging in is a valid subscriber). This would depend on the wording of that agreement, but pretty much all such agreements prohibit using services in excess of those explicitly authorized.

If the service provider became aware that a subscriber had abused the service by getting more free downloads or accesses than the authorized one per week, the provider could sue for breech of contract. Or the provider could simply terminate the subscription.

The provider might also report this to law enforcement, but in many places, this sort of theft is not a high priority for law enforcement unless it is being carried out on a quite large sale. If unlawfully downloaded videos are being resold, that might be more likely to trigger law enforcement action.

Since the abusive subscriber is perhaps copying videos in excess of what is permitted by the license that is part of the subscription, s/he is also committing copyright infringement, and the provide could also proceed with an infringement suit. But in many cases a provider will not think such a suit worth bringing.

The provider could, of course, take steps to fix the technical loophole that makes the unauthorized downloads possible (or try to fix it), but that is not a legal issue, merely a practical one.