Public records great expectations dating service legal cases

28-Feb-2019 09:27

Others have used similar tools to offer services that compete with or complement the offerings of the scraped websites – including uses of these tools to aggregate news content, and to monitor and facilitate purchases of airlines and concert tickets (with or without the permission or involvement of the scraped website). Warden's experience suggests, the use of these tools pit the interests of website owners in protecting, controlling and profiting from the content they provide against the interests of others who seek to gather and use that content for other purposes (be they harmful, helpful or irrelevant to the website owner).

These cases suggests that use of such tools to gather data may give rise to a claim for breach of contract, while also demonstrating the potential hurdles to prevailing on such claims. As is the general rule with any contract, a website's terms of use will generally be deemed enforceable if mutually agreed to by the parties.Spark Network Servs., Inc., the court found that the defendant did not violate the terms of service of plaintiff's dating website – which limited use of the “website and related services” to a visitor's “sole, personal use” – by visiting the website to obtain evidence for use in a patent infringement action against plaintiff.In so holding, the court analyzed the entirety of plaintiff's terms of use, including those prohibiting use of web crawlers or spiders to gather data from the website, to determine that they related to use of the website's dating services.The Ninth Circuit agreed – holding that the search engine's display of low-resolution photographs to facilitate the general public's access to information on the Internet was highly transformative of, and did not provide a substitute for, the plaintiff's high-resolution photographs whose purpose was primarily artistic.6 Notably, the fact that such use was for a commercial purpose did not bar the court's finding that the search engine made a fair use of plaintiff's copyrighted photograph.7 In contrast, in Associated Press v. S., Inc., the court found that an online news aggregator that provided its subscribers with nearly 500-character excerpts of copyrighted articles scraped from the website's of the Associate Press's licensees did not engage in a fair use of those articles., Inc., the defendant argued that the momentary copying of Ticketmaster's webpages by its spiders for the purpose of extracting factual information concerning concert times, ticket prices, and venues that defendant then posted to its website constituted a fair use. In so finding, the court emphasized that the copying was momentary, the effect on the market value of the copyrighted material was “nil”, and that the “amount and substantiality” of the material used was negligible insofar as defendant did not reproduce the copyrighted material on its webpage.

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The court distinguished the news aggregator's services from those at issue in Kelly on the grounds that the news aggregator did not facilitate the general public's access to information on the Internet, but instead only provided word-for-word excerpts of the copied articles to the aggregator's paying customers without transforming that content in any way.8 The court further held that the aggregator's use of that content to generate analytics relating to the online news sources it covered, while potentially transformative in and of itself, did not render the aggregator's excerpting transformative insofar as the analytics and excerpting were separate and distinct services.9 While even incidental reproduction of copyrighted webpage material may give rise to copyright liability, courts have also recognized that such reproduction may constitute a fair use of the protected content. Further, the court observed that the central purpose of the Copyright Act – i.e., “to secure a fair return for an author's creative labor and to stimulate artistic creativity for the general good” – would not be served by restricting defendant from momentarily copying Ticketmaster's webpages for the purpose of obtaining non-protected, factual information.10 In addition to the fair use defense, courts have also considered whether a plaintiff's copyright claims are subject to implied license or estoppel defenses based on its failure to deploy the “robots.txt” protocol to deter unwanted web crawling or scraping.

The cases discussed above establish that website terms of use may be enforced against any party who accesses or uses a website in violation of those terms, and that, if sufficiently clear and unambiguous, those terms may prohibit any automated data collection from the website.