This article provides an overview of the various legal issues relating to data extraction tools, which are at the center of the increasingly competitive social networking market.
Common law trespass to chattels. One of the first and most prominent cases was eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000). Bidder’s Edge was an auction aggregation site that used an automatic crawling tool that searched various auction websites and “scraped” information from these sites. Bidder’s Edge accessed the eBay site approximately 100,000 times a day, and the effect of the robots over time was to “consume the processing and storage resources” of eBay’s system.
The California Supreme Court in Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003), narrowed the potential scope of the eBay decision. The court held that a former Intel employee’s e-mails to current Intel employees, despite requests by Intel to stop sending messages, did not constitute a trespass of Intel’s e-mail system. The court rejected the suggestion of the eBay decision that unauthorized use of another’s chattel is actionable even without any present showing of injury. Under the reasoning of Hamidi, a social networking site plaintiff would need to establish that a data extraction tool caused an actual, non–de minimis impairment to its physical property or a legal interest in that property, diminishing its quality or value.
In the CFAA context, the courts are likewise split on the issue.
CAN-SPAM Act. To state a claim under the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), a party must allege that the defendant sent e-mails containing “materially false or materially misleading” header information. The statute defines false or materially misleading headers to include “information that is technically accurate but includes an originating electronic mail address, domain name, or Internet Protocol address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses representations.”
In the ConnectU case, the court dismissed Facebook’s CAN-SPAM claim, noting that even if there was “deception in connection with the manner in which ConnectU gathered the destination email addresses,” there was “nothing in the complaint suggesting that emails subsequently sent to those addresses included headers that were misleading or false as to the source from which they originated, or in any other manner.” By contrast, in Power Ventures, the court granted summary judgment for Facebook on its CAN-SPAM claim, holding that although the defendants were the “initiators” of the e-mail messages, their software program “caused Facebook servers to automatically send the e-mails,” which contained an “@facebookmail.com” address. Thus, as the header information did “not accurately identify the party that actually initiated the e-mail within the meaning of the Act,“ the header information was “materially misleading as to who initiated the e-mail.”
Copyright infringement. Data extraction tools also potentially raise copyright infringement issues. As the court made clear in Power Ventures, “Facebook does not have a copyright on user content, which ultimately is the information that Defendants’ software seeks to extract.” Nonetheless, the court held that Facebook had adequately pled a claim for copyright infringement because Power.com had made an unauthorized “cache” copy of the Facebook website into a computer’s RAM, which as a collection of noncopyrighted material arranged in an original way was subject to copyright protection.
DMCA. Section 1201(a) of the Digital Millennium Copyright Act (DMCA) prohibits “circumvention” or trafficking in tools that “circumvent” a “technological measure that effectively controls access to a work protected” under the Copyright Act. Section 1201(b) prohibits trafficking in technology that circumvents a technological measure that “effectively protects” a copyright owner’s right.
ABA Intellectual Property Law Section
This article is an abridged and edited version of one that originally appeared on page 12 of Landslide®, May/June 2012, (4:5).
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