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Doesn't publishing information on a public web server equals to granting authorization to download it? Why publish it otherwise? And copyright laws are suppose

Doesn't publishing information on a public web server equals to granting authorization to download it? Why publish it otherwise? And copyright laws are supposed to protect only creative works, not every page on the web.

cookiecaper 10y ago
>Doesn't publishing information on a public web server equals to granting authorization to download it? Why publish it otherwise? This is the argument that there is an implied license. The counterargument is that the user agreed to the Terms of Use which explicitly defined automated access as violative. In addition, these cases generally begin with a cease and desist demand letter, which explicitly informs the allegedly-infringing party that the publisher believes their rights are being violated and that they must cease and desist immediately. If the TOS argument doesn't hold, the C&D will surely qualify as a revocation of any implied license to access the content for copyright purposes. It generally also serves as explicit notice that the publisher considers the accessor to be "exceeding authorized use" of their computer systems, which is a crime under the CFAA. In Craigslist v 3Taps, the judge also commented that needing to circumvent IP bans should've made it obvious that 3Taps was "exceeding authorized access" under the CFAA. >And copyright laws are supposed to protect only creative works, not every page on the web. Copyright law protects all works of sufficient originality. Pretty much the only thing it doesn't protect is a plain list of facts (and in the European Union, it even protects that, known as "database rights"). The minimum standard of originality for copyright protection applies to practically every page on the web, yes. In effect, this means that you can copy a list of names and addresses from a phone book, but you can't copy the layout. Since you can't access a web page without making a copy in RAM, if the publisher has revoked your license to access the content, even accessing and extracting the raw factual information within the body of the page is an infringement (because your RAM copy is an infringing copy). IANAL and this is based on my layman's understanding.
- codedokode 10y ago
  I think that is wrong too. I think that copyright laws should make a distinction between making and distriubuting a copy by a person (for example uploading copyrighted file to a website) and technical processes that happen inside a computer. Copying something from NIC buffers to memory should not be "copying" under copyright law.
  - cookiecaper 10y ago
    The law tries to make this distinction by specifying that copies have to be fixed into a tangible medium to be infringing. The problem is that the "RAM copy doctrine", as it's known, states that RAM is a sufficiently fixed copy into a sufficiently tangible medium to qualify. This doctrine has been used against scrapers repeatedly, as in Ticketmaster LLC v. RMG Technologies, Inc. (https://casetext.com/case/ticketmaster-llc-v-rmg-technologies-3 https://casetext.com/case/ticketmaster-llc-v-rmg-technologie...) : > The copies of webpages stored automatically in a computer's cache or > random access memory ("RAM") upon a viewing of the webpage fall within > the Copyright Act's definition of "copy." See, e.g., MAI Systems Corp. > v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993) ("We recognize > that these authorities are somewhat troubling since they do not specify > that a copy is created regardless of whether the software is loaded into > the RAM, the hard disk or the read only memory (`ROM'). However, since > we find that the copy created in the RAM can be `perceived, reproduced, > or otherwise communicated,' we hold that the loading of software into > the RAM creates a copy under the Copyright Act.") See also Twentieth > Century Fox Film Corp. v. Cablevision Systems Corp., 478 F.Supp. 2d 607, > 621 (S.D.N.Y. 2007) (agreeing with the "numerous courts [that] have held > that the transmission of information through a computer's random access > memory or RAM . . . creates a `copy' for purposes of the Copyright Act," > and citing cases.) Thus, copies of ticketmaster.com webpages > automatically stored on a viewer's computer are "copies" within the > meaning of the Copyright Act.
- brilliantcode 10y ago
  ToS is not a legally binding mutual agreement between the website and the scraper. Only when it's materialized in the form of C&D and it caused damage to the website. In the QVC vs Resultly, they caused a website crashed. In the Craigslist vs 3Taps, the damages were non-existant but they still won because of the C&D letters. So if a website sends you a letter to stop, do not continue scraping them. Until that happens, it's fair game. ToS is not legally binding. Those two cases were the result of damage caused to the website. STOP. SPREADING. FUD. cookiecaper. All of your comments are the same unsound legal advice yet Mozenda, Import.io, and a whole bunch of tools & service providers are humming along just fine. Disclaimer: I'm not a lawyer, this is not a legal advice, consult a real lawyer and not random HN comments.
  - cookiecaper 10y ago
    >In the Craigslist vs 3Taps, the damages were non-existant but they still won because of the C&D letters. (Technically they settled.) Read up on that case and you'll see that even absent a C&D, the judge reasoned that Craiglist's IP ban against 3Taps was a separate incident of affirmatively communicating its intention that 3Taps refrain from accessing the site: > The calculus is different where a user is altogether banned from accessing a website. > The banned user has to follow only one, clear rule: do not access the website. The notice > issue becomes limited to how clearly the website owner communicates the banning. Here, > Craigslist affirmatively communicated its decision to revoke 3Taps’ access through its ceaseand-desist > letter and IP blocking efforts. 3Taps never suggests that those measures did not > put 3Taps on notice that Craigslist had banned 3Taps; indeed, 3Taps had to circumvent > Craigslist’s IP blocking measures to continue scraping, so it indisputably knew that Craigslist > did not want it accessing the website at all. The judge continues to suggest that using proxies at all is atypical and may demonstrate an intention to violate the CFAA. Ruling at http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf http://www.volokh.com/wp-content/uploads/2013/08/Order-Denyi... . >So if a website sends you a letter to stop, do not continue scraping them. Until that happens, it's fair game. ToS is not legally binding. Those two cases were the result of damage caused to the website. No, that's incorrect. You can believe this all you want, and I truly hope that it all goes well for you. It's totally possible that you will never piss off someone who has the resources to file a lawsuit over it. But you should know that you can be bound by a browsewrap agreement (and that it's quite easy to be bound by a clickwrap agreement, which, in practice, may not be much different and which scrapers may automatically follow (e.g., a link that says "click here to enter and agree")). It's really going to come down to the judge's belief that the notification is adequately prominent and that a "reasonably prudent user" would be aware of the stipulations. Quoth from Nguyen v. Barnes and Noble (citations removed): > where, as here, there is no evidence that the website > user had actual knowledge of the agreement, the validity of > the browsewrap agreement turns on whether the website puts > a reasonably prudent user on inquiry notice of the terms of > the contract. [...] Whether a user has inquiry notice of a > browsewrap agreement, in turn, depends > on the design and content of the website and the agreement’s > webpage. Where the link > to a website’s terms of use is buried at the bottom of the page > or tucked away in obscure corners of the website where users > are unlikely to see it, courts have refused to enforce the > browsewrap agreement. [...] On the other hand, where the website contains an > explicit textual notice that continued use will act as a > manifestation of the user’s intent to be bound, courts have > been more amenable to enforcing browsewrap agreements. > [...] In short, the conspicuousness and > placement of the “Terms of Use” hyperlink, other notices > given to users of the terms of use, and the website’s general > design all contribute to whether a reasonably prudent user > would have inquiry notice of a browsewrap agreement. Full decision at https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2014/08/18/12-56628.pdf https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/201... . >STOP. SPREADING. FUD. cookiecaper. All of your comments are the same unsound legal advice yet Mozenda, Import.io, and a whole bunch of tools & service providers are humming along just fine. I'm not giving any legal advice as I'm not a lawyer. For the third or fourth time here, this is all according to my layman's understanding. It's based on things I learned that time I had to close my business or face a lawsuit from a massive company over just such issues. It's crucial for companies that provide scraping services to be aware of these issues and I know of at least one such company who is aware of them and who takes several precautions to provide some distance from potential legal liability, though they are still not 100% out of the woods. As is usually required in entrepreneurship, they're taking a calculated risk. Should someone wage a legal challenge against their activity, they have millions of dollars in the bank from investors who presumably have researched this and are willing to accept the cost of the potential legal liability. I'm not saying that people shouldn't make businesses that depend on scraping data. I just think they should know what they're getting into before they do so. You are correct that some businesses have been able to engage in such activities without being sued out of existence up to this point. Unfortunately, that doesn't mean that others will be as lucky. I fully agree that anyone who is seriously interested/concerned about this should ask a lawyer. I certainly did. Their answers were not good news for me. Maybe they will be for you.

cookiecaper 10y ago

>Doesn't publishing information on a public web server equals to granting authorization to download it? Why publish it otherwise? This is the argument that there is an implied license. The counterargument is that the user agreed to the Terms of Use which explicitly defined automated access as violative. In addition, these cases generally begin with a cease and desist demand letter, which explicitly informs the allegedly-infringing party that the publisher believes their rights are being violated and that they must cease and desist immediately. If the TOS argument doesn't hold, the C&D will surely qualify as a revocation of any implied license to access the content for copyright purposes. It generally also serves as explicit notice that the publisher considers the accessor to be "exceeding authorized use" of their computer systems, which is a crime under the CFAA. In Craigslist v 3Taps, the judge also commented that needing to circumvent IP bans should've made it obvious that 3Taps was "exceeding authorized access" under the CFAA. >And copyright laws are supposed to protect only creative works, not every page on the web. Copyright law protects all works of sufficient originality. Pretty much the only thing it doesn't protect is a plain list of facts (and in the European Union, it even protects that, known as "database rights"). The minimum standard of originality for copyright protection applies to practically every page on the web, yes. In effect, this means that you can copy a list of names and addresses from a phone book, but you can't copy the layout. Since you can't access a web page without making a copy in RAM, if the publisher has revoked your license to access the content, even accessing and extracting the raw factual information within the body of the page is an infringement (because your RAM copy is an infringing copy). IANAL and this is based on my layman's understanding.

codedokode 10y ago
I think that is wrong too. I think that copyright laws should make a distinction between making and distriubuting a copy by a person (for example uploading copyrighted file to a website) and technical processes that happen inside a computer. Copying something from NIC buffers to memory should not be "copying" under copyright law.
- cookiecaper 10y ago
  The law tries to make this distinction by specifying that copies have to be fixed into a tangible medium to be infringing. The problem is that the "RAM copy doctrine", as it's known, states that RAM is a sufficiently fixed copy into a sufficiently tangible medium to qualify. This doctrine has been used against scrapers repeatedly, as in Ticketmaster LLC v. RMG Technologies, Inc. (https://casetext.com/case/ticketmaster-llc-v-rmg-technologies-3 https://casetext.com/case/ticketmaster-llc-v-rmg-technologie...) : > The copies of webpages stored automatically in a computer's cache or > random access memory ("RAM") upon a viewing of the webpage fall within > the Copyright Act's definition of "copy." See, e.g., MAI Systems Corp. > v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993) ("We recognize > that these authorities are somewhat troubling since they do not specify > that a copy is created regardless of whether the software is loaded into > the RAM, the hard disk or the read only memory (`ROM'). However, since > we find that the copy created in the RAM can be `perceived, reproduced, > or otherwise communicated,' we hold that the loading of software into > the RAM creates a copy under the Copyright Act.") See also Twentieth > Century Fox Film Corp. v. Cablevision Systems Corp., 478 F.Supp. 2d 607, > 621 (S.D.N.Y. 2007) (agreeing with the "numerous courts [that] have held > that the transmission of information through a computer's random access > memory or RAM . . . creates a `copy' for purposes of the Copyright Act," > and citing cases.) Thus, copies of ticketmaster.com webpages > automatically stored on a viewer's computer are "copies" within the > meaning of the Copyright Act.
brilliantcode 10y ago
ToS is not a legally binding mutual agreement between the website and the scraper. Only when it's materialized in the form of C&D and it caused damage to the website. In the QVC vs Resultly, they caused a website crashed. In the Craigslist vs 3Taps, the damages were non-existant but they still won because of the C&D letters. So if a website sends you a letter to stop, do not continue scraping them. Until that happens, it's fair game. ToS is not legally binding. Those two cases were the result of damage caused to the website. STOP. SPREADING. FUD. cookiecaper. All of your comments are the same unsound legal advice yet Mozenda, Import.io, and a whole bunch of tools & service providers are humming along just fine. Disclaimer: I'm not a lawyer, this is not a legal advice, consult a real lawyer and not random HN comments.
- cookiecaper 10y ago
  >In the Craigslist vs 3Taps, the damages were non-existant but they still won because of the C&D letters. (Technically they settled.) Read up on that case and you'll see that even absent a C&D, the judge reasoned that Craiglist's IP ban against 3Taps was a separate incident of affirmatively communicating its intention that 3Taps refrain from accessing the site: > The calculus is different where a user is altogether banned from accessing a website. > The banned user has to follow only one, clear rule: do not access the website. The notice > issue becomes limited to how clearly the website owner communicates the banning. Here, > Craigslist affirmatively communicated its decision to revoke 3Taps’ access through its ceaseand-desist > letter and IP blocking efforts. 3Taps never suggests that those measures did not > put 3Taps on notice that Craigslist had banned 3Taps; indeed, 3Taps had to circumvent > Craigslist’s IP blocking measures to continue scraping, so it indisputably knew that Craigslist > did not want it accessing the website at all. The judge continues to suggest that using proxies at all is atypical and may demonstrate an intention to violate the CFAA. Ruling at http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf http://www.volokh.com/wp-content/uploads/2013/08/Order-Denyi... . >So if a website sends you a letter to stop, do not continue scraping them. Until that happens, it's fair game. ToS is not legally binding. Those two cases were the result of damage caused to the website. No, that's incorrect. You can believe this all you want, and I truly hope that it all goes well for you. It's totally possible that you will never piss off someone who has the resources to file a lawsuit over it. But you should know that you can be bound by a browsewrap agreement (and that it's quite easy to be bound by a clickwrap agreement, which, in practice, may not be much different and which scrapers may automatically follow (e.g., a link that says "click here to enter and agree")). It's really going to come down to the judge's belief that the notification is adequately prominent and that a "reasonably prudent user" would be aware of the stipulations. Quoth from Nguyen v. Barnes and Noble (citations removed): > where, as here, there is no evidence that the website > user had actual knowledge of the agreement, the validity of > the browsewrap agreement turns on whether the website puts > a reasonably prudent user on inquiry notice of the terms of > the contract. [...] Whether a user has inquiry notice of a > browsewrap agreement, in turn, depends > on the design and content of the website and the agreement’s > webpage. Where the link > to a website’s terms of use is buried at the bottom of the page > or tucked away in obscure corners of the website where users > are unlikely to see it, courts have refused to enforce the > browsewrap agreement. [...] On the other hand, where the website contains an > explicit textual notice that continued use will act as a > manifestation of the user’s intent to be bound, courts have > been more amenable to enforcing browsewrap agreements. > [...] In short, the conspicuousness and > placement of the “Terms of Use” hyperlink, other notices > given to users of the terms of use, and the website’s general > design all contribute to whether a reasonably prudent user > would have inquiry notice of a browsewrap agreement. Full decision at https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2014/08/18/12-56628.pdf https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/201... . >STOP. SPREADING. FUD. cookiecaper. All of your comments are the same unsound legal advice yet Mozenda, Import.io, and a whole bunch of tools & service providers are humming along just fine. I'm not giving any legal advice as I'm not a lawyer. For the third or fourth time here, this is all according to my layman's understanding. It's based on things I learned that time I had to close my business or face a lawsuit from a massive company over just such issues. It's crucial for companies that provide scraping services to be aware of these issues and I know of at least one such company who is aware of them and who takes several precautions to provide some distance from potential legal liability, though they are still not 100% out of the woods. As is usually required in entrepreneurship, they're taking a calculated risk. Should someone wage a legal challenge against their activity, they have millions of dollars in the bank from investors who presumably have researched this and are willing to accept the cost of the potential legal liability. I'm not saying that people shouldn't make businesses that depend on scraping data. I just think they should know what they're getting into before they do so. You are correct that some businesses have been able to engage in such activities without being sued out of existence up to this point. Unfortunately, that doesn't mean that others will be as lucky. I fully agree that anyone who is seriously interested/concerned about this should ask a lawyer. I certainly did. Their answers were not good news for me. Maybe they will be for you.