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Ignorance + Legislation = A Useless Internet

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by Jay Garmon

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"Under ancient legal theories like 'trespass to chattels' and ill-advised modern laws like the federal Computer Fraud and Abuse Act and state computer crime statutes, courts are holding that if you don't have authorization, you can't access computers. And if you can't access computers, you can't collect data about airfares, auctions or evacuees."

--Jennifer Granick, executive director of the Stanford Law School Center for Internet and Society, writing for WIRED magazine
http://www.wired.com/news/technology/0,1282,68850,00.html

The above was written as a defense of Katrinaslist.net, a Web site designed to help families displaced and separated by Hurricane Katrina locate and communicate with loved ones. The Kratrinaslist site was built by volunteers who scraped publicly available data to create a central database. It cost no one anything other than volunteered time and effort, and it does a tremendous public good.

And eBay wants to make it illegal. So do airlines. They are tired of independent Web sites scraping airfare and auction data and creating comparison shopping sites that could lead to empowered consumers and price reductions (so much for Adam Smith's vaunted market transparency).

I'm a techno-libertarian. I'm for a presumption of access, and believe that data should be presumed accessible unless publishers (who are ostensibly in the business of disseminating data, otherwise why publish it?) make some basic effort to protect it. I refuse to view the Web with blinders on, seeing only the data that one vendor or publisher wants me to see.

Apparently, big business--usually all in favor of unfettered competition and access to resources--doesn't agree.

Anybody going to try and persuade me I'm wrong?

13 replies

by rexworld

I'm not totally opposed to allowing the kind of screen-scraping you describe. However there are I think legitimate reasons to let companies prevent scraping.

For one thing, there's no easy way for a scraping program to honor copyright issues. Take the eBay example--do a search for Sega Dreamcast consoles:

http://tinyurl.com/bzpks

Then click on some of the items. In the Description field for many of these listings you will see product data. Data copyrighted by a third party entity (in this case, CNET Channel, a division of our parent company CNET Networks).

Now how is a screen-scraping program going to know when it can and when it cannot scrape the Description from an eBay listing? Because clearly there are times when it can't, like in this instance because that data is copyrighted by somebody else. It's not eBay's data to give away even if they wanted to.

by Jay Garmon

I don't want to get too far down the road of copyright, but every copyright (at least under U.S. law) has an exception for Fair Use, where portions of a work can be copied for journalistic, academic, and various other purposes deemed to be applicable to the public good. The only rule here is proper citation of source, and since a hyperlink is considered a valid bibliographic reference, and since site scraping in this context is intended for comparative analysis, I don't think this would be reasonably construed as a copyright violation.

by rexworld

But how is that fair use? Allowing somebody to scrape eBay's catalog for their own purposes, like a price comparison site, is not fair use. Wouldn't that be like me deciding to create a mail-order catalog by cutting out the photos and descriptions from the Sears catalog and calling the Rex catalog?

We obviously need a lawyer to chime in but I fail to see how scraping is fair-use. Especially since you're loading down my database and my servers to do your scraping. That sounds like stealing, not fair use.

by Jay Garmon

If I scrape eBay, and somebody wants to bid on the auction, the sale still occurs at eBay. I'm not denying them a sale. If I scrape the American Airlines site, and someone wants to buy a ticket, they still pay American Airlines. To use your analogy, if I remixed the Sears Catalog as the Rex catalog, you still have to buy the items at Sears. It's not like the site scrapers have parallel inventory. They are reviewing publicly available data that the vendor is promoting. The issue here is that the vendors don't like the context of the review, because it exposes price disparities.

This is no different than the local news alerting people to which gas stations have the lowest prices. I'm sure the higher priced gas stations don't like it, but they can't injoin the TV station from reporting about gas prices. That's what vendors are attempting online.

by dc guy

If one of these corporations discovered a nifty way to "scrape" information out of your computer, you wouldn't be so supportive.

We libertarians are going to eventually have to face the unpleasant question of whether corporations really are "artificial persons" and therefore have all the rights of real members of the community.

I'm sure Adam Smith never envisioned corporations with more power and wealth than Bangla Desh competing on his "level playing field" with private citizens.

by wayne m.

I agree with DC Guy, and if you have ever dealt with one of the credit reference agencies (i.e. you breathe), then you can recognize how unsubstantiated repetition can be harmful.

The problem with many of the information mining systems like the one originally described is that no one is responsible for the validity of the data. A credit agency can gather data without verifying its truthfulness and repeat its conclusions. If a newspaper or journalist used these practices it or he could be sued for slander.

If one wants the right to gather and report information, one also needs to accept the responsibility for the veracity of the information.

by Jay Garmon

Fair use does not allow you to libel or slander, and reasonable fact-checking should certainly be part of the standard. I'm certainly not advocating site-scraping as a means of sidestepping responsibility for what you publish. Of course, I feel the same way about journalists who cite other journalists as a source and do no independent fact-checking.

An interesting aside to this is CNET's own Shopper.com, which is a price comparison site, but one which works with the permission of the compared vendors. When I've bought from there (admittedly rare) I rare use the lowest price, as it often comes from an unrecognized vendor with little or no feedback data. I'm willing to pay a little extra for the assurance that I won't get scammed or have to deal with customer service problems. I suspect site-scrapers will notice similar phenomena.

by jck

You can not use a registered trademark without consent of the holder without risking tort.

That's how a lot of "bargain" places sell you things, i.e.-by selling a "famous name brand" item at a discount. They can't tell you "Here's a John Deere 10HP lawn tractor" without getting permission to use "John Deere" from the holder of that trademarked name.

So anyways...back to the point of using content.

I think if a corporation leaves all of their data openly accessible to the world-at-large on the internet, they have been negligent in their duty to protect their own interests and have no one to blame but themselves. You should only divulge that information which you want anyone to access.

If another site attempts to charge for access to their site, products, etc. without expressed consent, I would think that would be a violation of law, i.e.- fraud for selling property which is not yours.

I believe the Sears catalog is a copyrighted publication and direct use of materials from that publication would be a violation of law.

I'm no lawyer, so...take it all with a bag of salt...not just a grain.

by hutchtech

These are the dying gasps of the old guard trying to fend off the dragon of the information age with the wooden shield of out-dated corporate legalities. This too shall pass.

Those who want to keep information proprietary will have to keep it off the grid. Publicly accessible data = publicly usable data. Like it or not, right or wrong, this is where the net has taken us and there is no going back.

- Hutch

by anykey???

I am sick and tired of people whining about useless trivial crap or better yet filing a lawsuit to stop this useless trivial crap. I say give them a piece of cheese and BIG helping of SHUT THE FVCK UP to go with their whine.

I applaud the people that put together the katrinalist, a small time operation that has the power to do what a large bumbling goverment can't do,the goverment can't do it because of all the BULL$HIT that goes along with anything that the goverment does.All I see is the redtape getting worse. and people pointing fingers and assigning blame, if the redtape didn't exist to begin with there would be no need for a special goverment department specifically for cutting through redtape.

As for copyright infringement how the hell can that be if the third party is not directly selling an item,or promoting an exact copy with OEM info to help sales, they are simply collecting publicly available info and making it availble at one single location. if you don't want that info "scraped" from your website then don't make it available to the public,seems pretty obvious to me(or am I just a simpleton that doesn't get it).

If you ask me someone should make Evilbay illegal,I am surprised that they don't charge you a fee to look at the site,because they charge you for EVERYTHING else.

Anyway, the american way is buying the best product for the absolute least amount of money,so what is the big deal with price comparison sites.I buy groceries at three different stores because I have spent time doing my own comparisons and even taking notes,is that against the law did I break some kind of copyright law, who cares? not me!

I use price comparison site quite often when I need to buy items for my catering business. I don't always buy the cheapest item, I compare price,shipping,seller and their site trying to determine if it feels like it will be a good transaction or not, customer service will get me to return my business not just low prices.

As for airlines not liking it screw them,the big airlines need to wake up and realize that the world is changing and either they change with it or they get swept under the rug and forgotten.Actually all big business needs to realize this, some companies have become so big that there is no way for them to adjust to the changing times, so they just buy up smaller companies that have changed to help them compensate for their inability to easily change with the times which I believe has them spiraling out of control.

This rant might or might not be on topic you might or might not agree with me, in all honesty I DO NOT CARE one way or the other,I am just sick and tired of people acting like 2 year olds and fighting over DUMB$HIT, I am to a point now with americans and american business that they all need to either grow up,adapt,and overcome or SHUT THE FVCK UP.
I swear to god,that I have recently realized why most of the world hates our FVCKING guts

by thechas

Jay,

Why should web publishers not be held to the same level of permissions that print publishers are held to?

You can't copy what's printed in books, magazines, or newspapers and use it for personal profit, without the original publishers permission. Why should web content be any different?

How about this question, What does CNet do should an article published on Tech Republic be posted verbatim on another web site?

Don't get me wrong, I'm all for free access to information. But, free access does not mean free reuse and distribution of information.

Whether information is published by an individual, or a business, they should have the right to determine how that information is distributed and reused.

What would happen if all web content could be reused without permission from the author or publisher? All of the most valuable content would switch to pay sites, or disappear entirely.

As to unauthorized access to wireless network portals, I side with making that illegal.

The Internet is becoming as much a utility as electricity, phone, water and other services.
If it is acceptable for someone to tap into an open wireless network, why is it not acceptable for them to tap into your outside faucets and electrical outlets?
For that matter, why not allow them to access the base station on your cordless phone and make all the long distance calls they desire?

Yes, the argument can be made that Internet access is a fixed cost per period of time rather than a metered service. While tapping a wireless access point may not directly impact the owner, it does raise costs and lower profits for their ISP.

Under the free use concept, a few neighbors could band together and split the cost of Internet access. Instead of 5 or 6 customers for the ISP, there would now be just 1. Is that fair?

Be it a war, a natural disaster, or just our desire to get something for nothing, there is no justification to take a person's or business's work product and distribute it without permission or compensation.

Chas

by Jay Garmon

As a writer, plagiarism is a subject to which I am very sensitive. That said, I am not talking about republishing whole articles verbatim. (Though I would argue that RSS syndication is designed precisely for this purpose, especially if the feed includes complete content and not synopses. The key there is appropriate attribution, which many blogs neglect--a subject for another time.)

I simply don't believe that expression-neutral, publicly accessible data is a trade secret or an asset eligible for copyright. Denying this principle is akin to saying that I can't publish a list of phone numbers because that would infringe the copyright of the Yellow Pages.

I would certainly concede to the established legal standard of idea versus expression, as already firm in copyright law. I can readily republish all the same phone numbers, addresses, and business names listed in the Yellow Pages (the ideas), but I can't steal the Yellow Pages layouts, or the text of the advertisements explicitly placed in the Yellow Pages (the unique expression). I would also concede that the onus is on site-scrapers to adhere to this standard.

I simply refuse to concede to anyone that hyperlinks and published prices are unique expressions that deserve protection, nor am I willing to consider a site-scraper script as a "trespasser" on a publicly accessible site. If the latter were true, it would more or less put every search engine spider on the sidelines, and render every search engine useless. (As an aside, it would not surprise me if this were not a longterm goal of major vendors and Web publishers. They would love it if search indexes could only list the data that publishers explicit provide--say, via RSS feed--once again wresting control away from the public.)

by absolutely

But only in describing himself as a "techno-libertarian". At least in this case, Your position that information ought to be free is much less fringe than libertarianism, to say nothing of techno. "Perfect information" is implied in economic models of rational decision-making. When complete information about purchasing options is unavailable, it is impossible to know what is the most rational choice, Adam Smith's invisible hand is severed, and Karl Marx's iron fist takes its place.

The purpose of copyright protection is to prevent fraud, not to protect the "rights" of manufacturers or resellers to evade the responsibility of competing for your business.

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