Monday, January 7, 2013

Scraping Lawsuits and Copyright Claims

Professor Eric Goldman had an interesting post recently recapping the growth of scraping lawsuits in the e-real estate industry.  Web scraping, in simplest terms, is the practice of harvesting data from a particular website.  Often, this data is copied and re-packaged on another website for the purpose of monetary gain - either through sales, clicks or links.

Real estate websites, as Goldman's post points out, are particularly susceptible to this practice.  Real estate internet listings usually consist  of photographs and text descriptions of the property.  Copyright law is the most obvious tool useful for protecting such information and prosecuting data scrapers.  Interesting analysis has appeared lately questioning whether or not the text descriptions of the properties contain enough creative expression to deserve protection under the Copyright Act.  Furthermore, scrapers may advance a broad defense under the Fair Use Doctrine.

Goldman points out, and I agree, that the photographic elements of such listings likely provide the strongest protection.  Photographs are generally unquestionably granted protection under the Copyright Act.  As such, multi-listing services should make sure not only to include photographs but to obtain proper ownership and submit copyright registrations.  Registrations entitle plaintiffs to statutory damages and attorney fees in the event of infringement.  This is important because often scraping infringements do not result in quantifiable or significant damages - rendering litigation an unprofitable option. 

Even if copyright infringement claims are not clear, there are usually a number of viable state law claims to combat scraping.  The most obvious is breach of contract - which can be accomplished by inserting a no scraping clause in a website's terms of service.  Some courts may have problem with assent if there is no affirmative click through agreement.  Secondly, depending on how scraping is accomplished (there are several methods), there may be claims under the CFAA for unauthorized server access.  Finally, many states, in particular, California, have unfair competition laws which offer broad protection for business practices deemed unfair.  As long as pecuniary damages can be shown or that the defendant profited from the scraping activity, such claims are likely to succeed. 

An experienced Internet copyright litigation attorney is able to advise both defendants and plaintiffs of their rights in web-scraping cases. 

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