Disclaimer: This post discusses general legal issues, but it does not constitute legal advice in any respect.

Web scraping (also referred to as crawling or spidering) is the automated process of gathering data from another person's website. But is this practice a great method for mining competitor data, or is it just a legal pitfall waiting to happen? We discuss below:

Simply put, web scraping might be one of the best ways to aggregate content from across the internet, but it comes with a caveat: It’s also one of the hardest tools to parse from a legal standpoint.

For the uninitiated, web scraping is a process whereby an automated piece of software extracts data from a website by “scraping” through the site’s many pages. While search engines like Google and Bing do a similar task when they index web pages, scraping engines take the process a step further and convert the information into a format which can be easily transferred over to a database or spreadsheet.

It’s also important to note that a web scraper is not the same as an API. While a company might provide an API to allow other systems to interact with its data, the quality and quantity of data available through APIs is typically lower than what is made available through web scraping. In addition, web scrapers provide more up-to-date information than APIs and are much easier to customize from a structural standpoint.

The applications of this “scraped” information are widespread. A journalist like Nate Silver might use scrapers to monitor baseball statistics and create numerical evidence for a new sports story he’s working on. Similarly, an eCommerce business might bulk scrape product titles, prices, and SKUs from other sites in order to further analyze them.

While web scraping is an undoubtedly powerful tool, it’s still undergoing growing pains when it comes to legal matters. Because the scraping process appropriates pre-existing content from across the web, there are all kinds of ethical and legal quandaries that confront businesses who hope to do leverage scrapers for their own processes.

In this “wild west” environment, where the legal implications of web scraping are in a constant state of flux, it helps to get a foothold on where the legal needle currently falls. The following timeline outlines some of the biggest cases involving web scrapers in the United States, and allows us to achieve a greater understanding on the precedents that surround the court rulings.

2000-2009: Terms of use tug-of-war

For years after they first came into use, web scrapers went largely unchallenged from a legal standpoint. In 2000, however, the use of scrapers came under heavy and consistent fire when eBay fired the first shot against an auction data aggregator called Bidder’s Edge. In this very early case, eBay argued that Bidder’s Edge was using scrapers in a way that violated Trespass to Chattels doctrine. While the lawsuit was settled out of court, the judge upheld eBay’s original injunction, stating that heavy bot traffic could very well disrupt eBay’s service.

Then in 2003’s Intel Corp. v. Hamidi, the California Supreme court overturned the basis of eBay v. Bidder’s Edge, ruling that Trespass to Chattels could not extend to the context of computers if no actual damage to personal property occurred.

So in terms of legal action against web scraping, Tresspass to Chattels no longer applied, and things were back to square one. This began a period in which the courts consistently rejected Terms of Service as a valid means of prohibiting scrapers, including cases like Perfect 10 v. Google, and Cvent v. Eventbrite.

The Takeaway: The earliest cases against scrapers hinged on Trespass to Chattels law, and were successful. However, that doctrine is no longer a valid approach.

2009: Facebook steps in

In 2009, Facebook turned the tides of the web scraping war when Power.com, a site which aggregated multiple social networks into one centralized site, included Facebook in their service. Because Power.com was scraping Facebook’s content instead of adhering to their established standards, Facebook sued Power on grounds of copyright infringement.

In denying Power.com’s motion to dismiss the case, the Judge ruled that scraping can constitute copying, however momentary that copying may be. And because Facebook’s Terms of Service don’t allow for scraping, that act of copying constituted an infringement on Facebook’s copyright. With this decision, the waters regarding the legality of web scrapers began to shift in favor of the content creators.

The Takeaway: Even if a web scraper ignores infringing content on its way to freely-usable content, it might qualify as copyright infringement by virtue of having technically “copied” the infringing content first.

2011-2014: U.S. v Auernheimer

In 2010, hacker Andrew “Weev” Auernheimer found a security flaw in AT&T’s website, which would display the email addresses of users who visited the site via their iPads. By exploiting the flaw using some simple scripts and a scraper, Auernheimer was able to gather thousands of emails from the AT&T site.

Although these email addresses were publicly available, Auernheimer’s exploit led to his 2012 conviction, where he was charged with identity fraud and conspiracy to access a computer without authorization.

Earlier this year, the court vacated Auernheimer’s conviction, ruling that the trial’s New Jersey venue was improper. But even though the case turned out to be mostly inconclusive, the court noted the fact that there was no evidence to show that “any password gate or code-based barrier was breached.” This seems to leave room for the web scraping of publicly-available personal information, although it’s still very much open to interpretation and not set in stone.

The Takeaway: Using a web scraper to aggregate sensitive personal information can lead to a conviction, even if that information was technically available to the public. While there is hope in the court’s observation that no passwords or barriers were broken to retrieve this information, the waters here are still very volatile.

2013: Associated press vs. Meltwater

Meltwater is a software company whose “Global Media Monitoring” product uses scrapers to aggregate news stories for paying clients. The Associated Press took issue with Meltwater’s scraping of their original stories, some of which had been copyrighted. In 2012, AP filed suit against Meltwater for copy infringement and hot news misappropriation.

While it’s already been established that facts cannot be copyrighted, the court decided that the AP’s copyrighted articles—and more specifically, the way in which the facts within those articles were arranged—were not fair game for copying. On top of this, Meltwater’s use of the articles failed to meet the established fair use standards, and could not be defended on that front either.

The Takeaway: Fair use is limited when it comes to web scrapers, and copyrighted content is not always open to be scraped.

2014: QVC vs. Resultly

In 2014 QVC (the well known TV retailer) and Resultly (a startup shopping app) got into a legal battle over what QVC termed as Resultly's "excessive crawling" of their site. QVC's complaint further alleged that that Resultly disguised its web crawlers to mask its source IP address, which prevented QVC IT personnel from quickly blocking the unwanted crawlers. And while Resultly's automated crawlers were aggressive enough to overload QVC's servers—causing outages that cost QVC around $2M in revenue—the courts ruled that Resultly didn't act to cause intentional harm to QVC's site. On the contrary the court had this to say:

"Resultly was not QVC’s competitor, a disgruntled QVC employee, or an unhappy QVC customer aiming to cause damage to QVC’s server. To the contrary, Resultly’s goal was to grow a loyal user base of people who gain something from being directed to QVC’s website."

The Takeaway: you should always be maintaining your site against crawlers, not only because this is a no-brainer IT practice, but because the legalities concerning web scraping are still so murky that businesses can't reasonably expect to be bailed out by the courts.

Conclusion

By closely observing the outcomes of previous rulings, you’ll find that there are a few guidelines that a scraper should attempt to adhere to:

• Content being scraped is not copyright protected

• The act of scraping does not burden the services of the site being scraped

• The scraper does not violate the Terms of Use of the site being scraped

• The scraper does not gather sensitive user information

• The scraped content adheres to fair use standards

• Always ALWAYS be doing your own due diligence to block against scraping is this is activity unwanted on your site-the courts' decisions are to volatile to expect a favorable outcome

While all of these guidelines are important to understand before using scrapers, there are other ways to acclimate to the legal nuances. In many cases, you’ll find that a simple conversation with a business software developer or consultant will lead to some satisfying conclusions: Odds are, they’ve used scrapers in the past and can shed light on any snags they’ve hit in the process. And of course, talking with a lawyer is always an ideal course of action when treading into questionable legal territory.