C.E.B.
ELECTRONIC COMMERCE AND INTERNET LAW & PRACTICE:
5th Annual Recent Developments
Protecting Internet Content Databases
Epinions, Inc.
1. What’s
the Problem?
• Publishers are uploading content
databases to the Internet
• Internet services are
generating content about/from their users
• “Scraping”
• Competitor poaching and
aggregator intervention
• No US law protects
“databases”
2. Summary
• Copyright
• Hot News
• Contract
• Trespass/CFAA
• Technology and Business
Model Solutions
3. Copyright…and
its Limits
•
Copyright
protects “original works of authorship”
•
Facts
and ideas are excluded
•
Compilation
copyrights can provide thin database protection for “selection, arrangement and
coordination”
•
A
few cases find copyrights in data that is the product of judgment (e.g., CDN v.
Kapes)
4. Hot
News
•
Most
intangible misappropriation doctrines preempted by copyright law
•
Elements
–
Information
generated/collected at some expense
–
information is highly
time-sensitive
–
defendant’s use
free-rides on plaintiff’s efforts
–
defendant’s use directly
competes with plaintiff
–
free-riding reduces
incentive to create such that existence/quality is substantially threatened
•
Potential
examples: news headlines, sports scores, product pricing/availability info,
weather info
5. Contracts
•
Contracts
can create synthetic restrictions
–
How data may be used
–
Disclosing data to third
parties
•
Must
be mandatory, non-leaky clickthrough agreement
–
Succeeded when on the
search page (Register.com)
–
Failed when link at
bottom of home page (Tickets.com) or could download software without seeing
terms (Specht)
•
Subject
to all standard contract defenses
–
Incapacities,
unconscionable, public policy
6. Trespass/Computer
Fraud & Abuse Act
•
Protect
information by protecting servers
•
Trespass
–
Use/intermeddling
–
Dispossession
–
Notification?
–
Self-help?
•
CFAA
–
Accessing a “protected”
computer without authorization (or in excess of authorization)
–
Taking information or
causing damage
–
EF Cultural Travel v.
Explorica
7. Technology
and Business Model Solutions
• Technology
– Dynamic web pages
– Password protection
– Copyright management devices
– Robot exclusion devices
• Business model
– Real time
– Organization/“meta-data”
– Co-branding