scraping – Attorney Evan Brown

Web scraping is that activity where a party uses automated software to crawl the internet and copy data and other content, usually so that it can compile that together and make its own product offering. This may be of concern to you because you are a company that does web scraping. Or you may be a web publisher and there are other parties that are scraping your content. Let’s examine some of the legal issues around web scraping.

Breach of contract

One of the questions that commonly arises around web scraping is whether the activity is a breach of contract. More specifically, the question is whether the use of automated software violates the terms of service of the website that is being scraped. You often see website terms of service prohibit the use of spider and other automated crawling software to access and use the site. Parties who own websites that are being scraped will often look to see whether the scraping of their site is a breach of contract.

Copyright infringement

Another common question arising when analyzing web scraping is lawful whether scraping constitutes copyright infringement. This is a difficult argument to make if all that is being scraped is data, because mere facts usually are not subject to copyright protection. But if there is other content being scraped, such as images or specific compilations of data, the question of copyright infringement becomes a bit easier to answer in that unauthorized copying is an likely an infringement.

Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act is another topic that often comes up in discussions about web scraping. This is a federal law that makes it unlawful for a person to access a protected computer without authorization, or in excess of a specific authorization. So the question becomes whether that access by the automated web scraper violates the Computer Fraud and Abuse Act. There are some important things that have to be proven for a plaintiff to succeed under the Computer Fraud and Abuse Act, and one of those is loss or damage that results from the unauthorized access. It is a very fact intensive inquiry that has to be made, but the Computer Fraud and Abuse Act is one thing that parties should think about in the context of web scraping.

Trade secrets

The question of trade secrets is another good one to raise in the context of web scraping. A trade secret is any information that a company has that gives that company a commercial advantage in the marketplace because it is secret. The information also has to be the subject of protective efforts — the company has to try to keep the information secret. For example, if information on a website is put there in a way that is behind certain protective barrier,s and the party doing the scraping circumvents those barriers, it could be that there is a misappropriation of trade secrets, particularly if that information is used for some competitive purpose.

Let’s talk

Web scraping legal issues can be complex. Scraping presents certain legal risks to the ones doing it, and the law provides certain powerful remedies when web scraping runs afoul of the rules. If you have questions about web scraping, give me a call at (630) 362-7237, or send me an email at ebrown@internetcases.com.

About the author

Evan Brown is a technology and intellectual property attorney in Chicago. This content originally appeared on evan.law.

Previously, plaintiffs had operated in partnership with Facebook, whereby plaintiffs had access to the Facebook Open Graph API. In late August 2019 (a few weeks after a Business Insider article identified plaintiffs as misusing the Instagram platform) Facebook terminated the marketing partnership and access to the API.

After efforts to informally resolve the situation failed, plaintiffs, perhaps emboldened by the Ninth Circuit’s recent decision in hiQ v. LinkedIn, sued Facebook and Instagram asserting a number of claims, including breach of contract and tortious interference, and also sought a declaratory judgment that plaintiffs did not violate the Computer Fraud and Abuse Act. Plaintiffs sought a temporary restraining order that would have restored access to the platforms pending the case’s determination on the merits. But the court denied the motion.

No irreparable harm likely

The court rejected plaintiffs’ argument that they would suffer irreparable harm if access was not restored. It found that plaintiffs’ allegations of imminent harms shared a common fatal flaw in that they merely alleged speculative harm – they did not sufficiently demonstrate that irreparable harm was likely to occur.

Plaintiffs did establish for purposes of this motion that much (though not all) of the work they conducted for clients before losing API access involved Facebook. But the court found that plaintiffs had not sufficiently shown that they would actually lose current customers, or fail to acquire new prospective customers, if access were not restored.

Further, the court found that plaintiffs’ CEO’s statement that “this will soon reach a tipping point where [plaintiffs] can no longer operate” was not specific enough to demonstrate there was irreparable harm. “The extraordinary relief of a pre-adjudicatory injunction demands more precision with respect to when irreparable harm will occur than ‘soon.’ Such vague statements are insufficient evidence to show a threat of extinction.”

Not in the public’s interest

The court also found that the “public’s interest caution[ed] against issuing injunctive relief at this time.”

Plaintiffs argued that the public interest favored an injunction because one would prevent the imminent destruction of plaintiffs’ business, preserve employee jobs, and generally allow plaintiffs to continue operating. Additionally, they argued that the public interest would be served by enjoining defendants’ wrongful conduct.

Defendants argued that the public had an interest in allowing Facebook to exclude those who act impermissibly on its platform and jeopardize user privacy by, in this instance, automating data collection and scraping content en masse. Defendants argued that the public has an interest in allowing them latitude to enforce rules preventing abuse of their platforms.

The court decided that awarding injunctive relief at this stage would compel Facebook to permit a suspected abuser of its platform and its users’ privacy to continue to access its platform and users’ data for weeks longer, until a preliminary injunction motion could be resolved. Moreover, as precedent within Facebook’s policy-setting organization and potentially with other courts, issuing an injunction at this stage could handicap Facebook’s ability to decisively police its social-media platforms in the first instance. Facebook’s enforcement activities would be compromised if judicial review were expected to precede rather than follow its enforcement actions.

And although the public certainly has some interest in avoiding the dissolution of companies and the accompanying loss of employment, the court found that Facebook’s ability to decisively police the integrity of its platforms was without question a pressing public interest. In particular, the court noted, the public has a strong interest in the integrity of Facebook’s platforms, policing of those platforms for abuses, and protection of users’ privacy.

Stackla, Inc. v. Facebook Inc., No. 19-5849, 2019 WL 4738288 (N.D. Cal., September 27, 2019)

Tag: scraping

What are the legal issues around web scraping?