The proliferation of Internet access and mobile devices has led to an exponential explosion of content on the Web, creating a vast repository of "publicly available" information. This includes not only news, business, and financial information, but also personal data, movie and restaurant reviews, concert ticket sales, flight information, and a virtually endless array of other categories. This same technological explosion, however, has made it far easier for third parties to extract this data for commercial sale and use—and to do so for free and without authorization. This data extraction, commonly referred to as "scraping," "crawling," or "spidering" (collectively "scraping"),1 creates legal issues and concerns for both sides of this issue—those who want to scrape, and those who want to protect against scraping of their websites.
This article provides a primer on the legal framework surrounding scraping, addressing both the grounds for potential claims against scrapers, and ways to avoid liability for scraping. The common theories of liability arising from scraping are copyright infringement, trespass to chattels, breach of contract, and violation of the Computer Fraud and Abuse Act (CFAA). This article discusses the leading cases applying these legal theories to website scraping, and concludes that the most effective way to create potential claims against scrapers is through carefully drafted prohibitions in a website's terms of use. Conversely, the most effective way to defend against a claim of unauthorized scraping is to abide by such terms of use, or to establish that scraping constitutes a fair use and does not overburden the servers of the website being scraped.
Copyright Infringement
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