A week has passed since OxyCon, but we still can’t shake off the excitement of the two-day event. The presentations were top-notch and incredibly informative. This is why we’re so eager to share as much as we can with you!
On the second day of OxyCon, our legal counsels Denas and Nerijus went over a very tricky subject on web scraping – web scraping legal issues.
In this summary of their presentation, we’ll be concentrating over the landmark scraping cases that set the tone for future scraping legal claims such as copyright, CFAA, etc. and how it affects scraping today and what web scraping legal issues can one encounter when scraping certain websites.
Feist Publications v. Rural Telephone Service Co (1991)
The situation concerns two U.S. telephone service companies Feist and Rural. Feist was making compilations of telephone listings and in doing so, copied entries from the Rural’s directory, leading to the latter suing for copyright breach.
In courts, it was decided that an element of creativity is needed for sets of information to be copyrightable. The court found no creativity in Rural’s alphabetical list of phone numbers and denied its copyright protection.
The decision set the tone for future scraping copyright claims, as it established that compilations of factual information were not protectable by copyright. Still, the creative parts of it (e.g., author’s comments, order or style of presentation, etc.) might be.
eBay vs. Bidder’s Edge (2000)
Bidder’s Edge, an online auction listing aggregator, was scraping eBay’s auction data and continued to do so after receiving a C&D (Cease and Desist) letter as well as an IP address block. eBay sued Bidder’s Edge under U.S. legal rule of trespass to chattels, which forbids intentional interference with another person’s movable personal property.
Bidder’s Edge activities only amounted to approximately 100,000 hits per day (1,5% of eBay’s total daily traffic). Despite Bidder’s Edge activities being minor in scale, the court found them sufficient for trespass to chattels to apply and ordered Bidder’s Edge to stop scraping eBay.
The decision was criticized and deconstructed by other courts in future cases, with some of them stating that actual harm would need to be shown to prove “interference” within the context of the trespass to chattels rule.
Facebook v. Power Ventures (2009)
Power Ventures was an operator of a website, aggregating different social network information on a single page. Because of its scraping activities, it was sued by Facebook for allegedly breaching U.S. Computer Fraud and Abuse Act (the CFAA).
The CFAA forbids obtaining information from a protected computer (or network) after intentionally accessing it without or by excess authorization. The court decided that continuing to access a network after receiving a C&D letter referencing the CFAA can lead to a violation of the said act.
The decision was heavily scrutinized because the question of whether Facebook’s user data should be considered publicly available was not analyzed. Critics also feared that the CFAA could be used as a tool to shut down the competition by big internet companies. Thankfully for scraping companies, a case with similar circumstances yielded a different outcome in a future landmark decision (see below: hiQ labs v. LinkedIn).
Craigslist vs 3Taps (2013)
3taps was scraping Craigslist to aggregate user-submitted Craigslist advertisements. After issuing a C&D letter and an IP address block, Craigslist sued 3taps for breaching the CFAA as well as for infringement of its copyright.
The decision started active discussions with regards to the legal “weight” of C&D letters, which are unilateral lists of demands issued by the sender, as well as to the fact that Craigslist was able to claim exclusive intellectual property rights to its advertisers’ ad copy, even if temporarily.
QVC v. Resultly (2014)
A dispute between QVC, an online and TV retailer that got scraped by Resultly provided a few interesting insights as far as scraping goes.
QVC tried to invoke a different CFAA ground, which prohibits intentionally causing damage. Resultly’s scraping activities (500-600 requests/s) did overload QVC’s servers, but this argument was rebuked as Resultly’s business directly benefited from QVC’s website running without interruption. Further, QVC’s ToU did not prohibit scraping, while its robots.txt file did not put a limit on crawl rates.
No infringement of the CFAA was found in this case by the courts.
Ryanair v. PR Aviation (2015)
Ryanair’s argument with a flight price comparison company PR Aviation provided a glimpse of how scraping could be interpreted in European courts. Ryanair’s website subjects its visitors to ToU, which explicitly prohibit scraping. PR Aviation was scraping Ryanair, who took them to court in the Netherlands for breach of contract.
Ryanair came out second best from the dispute, as the Dutch court said that there was no valid contract formed between the companies. It made an interesting allegory, stating that anyone putting up a poster in a shop window visible from the public road, which reads: “Whoever reads further, must pay € 5,” cannot accept that the person reading this wants to commit to such a condition.
Still, this does not mean that ToU would not be applicable in a different scenario, as there were a lot of circumstances unfavorable to Ryanair here. Namely, the facts that at the time of the scraping, Ryanair was presenting its ToU in a browsewrap, which is not generally accepted as legally binding by courts, as well as the fact that the scraped data was free and accessible to everyone.
Ryanair v. Expedia (2019)
Expedia, a U.S. flight comparison company, was scraping Ryanair’s data and continued doing so after receiving a C&D letter. Consequently, it was sued by Ryanair for breaching the CFAA. Expedia argued that Ryanair is an Irish company, therefore the CFAA, a U.S. statute should not be applicable.
The courts established that the CFAA might indeed apply to U.S. companies acting internationally. After this, Ryanair and Expedia settled the case, with the details being confidential. With that being said, as of this day, there no Ryanair flights being offered via Expedia’s website.
HiQ labs v. LinkedIn (2019)
HiQ labs is a company that scrapes data from public LinkedIn profiles to provide tools and insights on employees to businesses. After allowing HiQ scrape for several years, in 2017, LinkedIn issued a C&D letter to HiQ and themselves launched a tool similar to HiQ’s functionality. HiQ sought an injunction in court, which was granted, leading to LinkedIn being asked to withdraw the C&D letter and stop applying any blocking measures against HiQ.
LinkedIn appealed the decision, arguing that HiQ’s scraping was breaching the CFAA. The court decided that HiQ was not acting in breach of the CFAA, as the data scraped from LinkedIn was public (profiles containing user-generated content; not put behind a password wall). The court said that companies should not be able to revoke authorization where one is not needed in the first place, as well as that allowing companies like LinkedIn to decide who can collect and use public data would be contrary to the public interest.
The decision was favorable to scraping companies and reconsidered some of the much-criticized previous court practice with regards to the applicability of the CFAA, narrowing the applicability of this act with regards to public data (e.g., Facebook v. Power Ventures, Craigslist v. 3Taps). With that being said, if not done with caution, scraping activities might still be subject to potential breaches of the CFAA (e.g., under different case’s circumstances) as well as other grounds such as, among others, trespass to chattels, copyright or breach of contract.
Now, having gone through this, is it legal to scrape data from websites? As our legal counsels would put it themselves – it depends. There is no simple answer to this question as one must answer whether the scraping done does not breach any laws surrounding the said data.
So please, take this article as informational and educational only. It does not replace independent professional advice and judgement. Statements of fact and opinions expressed are those of the presenters only, and unless expressly stated to the contrary, are not the opinion or position of Oxylabs.