This isn't an entirely new issue, but it's one that libraries have been ignoring, and that others involved in drafting terms of service may also wish to think further about. I wrote fairly extensively about this for C&RL News last fall when the first set of charges were brought against Swartz, but that article may be a little tl;dr for many. Here's some takeaways:
- Violations of terms of service can be the basis of criminal charges in many US jursdictions.
- When you agree to terms of service, you are exposing yourself (or those on whose behalf you're agreeing) to brand new criminal liabilities.
- The more restrictions or limitations a set of terms place on users' activities, the more possible criminal violations those terms are creating.
- Those of us who draft and agree to license terms or terms of service do not get to decide when or if a violation is worthy of criminal charges in response; that's up to prosecutors.
If you're agreeing to terms on behalf of others, you really might want to think about how realistic it is that your users will actually comply with the restrictions & limitations you're agreeing to, and what criminal risks, completely out of your or vendors' control, you're creating for them. Negotiation is an underused option, especially in libraries!