C.E.B. ELECTRONIC COMMERCE AND INTERNET LAW & PRACTICE:
5th Annual Recent Developments
Protecting Internet Content Databases
Eric Goldman
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