Originally Posted by audioxbliss
I'd consider it more like you walk into a TV store, and discover an employee left the back room unlocked. Then you and a bunch of others discover the TV's located back there have new UPCs and haven't been updated so they're only $100, so you all go back there, grab TVs, take them to the register, and pay. Just because someone accidentally left a door unlocked doesn't mean you're allowed to go in the door and take the stuff behind it. Even though you technically did pay something, you weren't supposed to have access to the item, making it theft in the first place.
I know I've already responded to this, but I thought about it some more, in particular your comment about theft. I'll quote my earlier response as it builds upon that
Originally Posted by [Adz]
Kristian's right, but I disagree with that being what happened. It is a good analogy, but I personally interpret it as incorrect.
This is why:
In a bricks and mortar store, going into a private access area would be an initial impossibility (common mistake - see my earlier post) because it was sitting in a private room, not to be sold.
But what's happened here with NVidia is that they've accidentally taken all those metaphoric TV's from the stock room and put them on the shelves. Why do I think that? Because it's on the world wide web - they put it in a publicly accessible room. And yes, they made a mistake, but it's their own fault - as I mentioned earlier a contract can only be terminated if it's an impossibility where fault lies on neither party. They did it, and allowed the contract to be formed.
If, however, it was in a password protected area, and somebody left the password blank which allowed everyone to access it (the same as leaving the door open in your analogy), there's still an expectation of privacy and that the products were never meant to be sold. But as I said, they took it out of a private area and put it on the show room floor - even if it's in the back corner where nobody ever visits, it's still part of everything that's on display to the customer, and thus valid.
So in that response, I concluded that by putting the page on a publicly accessible web page, rather than a secure intranet, they are effectively putting the product on their shelves for sale. This conclusion allows my earlier analogy of buying a TV to remain true.
Now, building upon that, Nvidia accepted the offer of personal details and a payment to the value of $0 in exchange for the serial key and download service. They delivered the goods to the customer, meaning they've already gone past the stage at which they reserve the right to cancel or change the terms.
That serial becomes the property of the customer. What Nvidia has done is sold the goods to the customer and then taken it back from them. So who here actually committed the "theft" as you put it? The consumer who made an offer which was accepted by Nvidia, or Nvidia who took the key back without even having the courtesy to knock first?
Again, bricks and mortar example: you go into a game store, walk up to the counter with a hard copy of Metro 2033 and offer to pay $0 for it. For whatever reason, the employee at the counter accepts your offer and you take it home. That night, the employee goes to your house, takes the game back and then sends you a letter a few days later saying "Sorry, we screwed up". Again, who actually committed the theft here?