Page 4 - Complex Litigation

S4 | MONDAY, MAY 22, 2017 | Complex Litigation
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Searching for Web Crawling’s
with a seed list of webpages from which they will request content, including HTML, text, image, and other les. Then, they copy the les and either extract speci c data or the entirety of the les for later analysis.
For example, search engines generally iden- tify hyperlinks and keywords from accessed webpages, add that information to their data- base for later analysis to improve their search algorithm, and continue to move across the Internet looking for new sources of content. Technology-savvy businesses, however, continue to develop new uses for search technology. Thus, while early efforts may have involved creating databases of factual information or gathering contact information for marketing solicitations, all manner of uses have been developed, including follow-on and copy-cat services that repeatedly access com- petitors’ platforms as part of their functional- ity. In addition to potential copyright issues not discussed here, these new services may raise concerns for website operators if they disrupt the operators’ services or damage their servers.
Financial professionals (particularly “quant analysts”) use similar technology with algo- rithmic trading and quantitative analysis. Their databases generally are more targeted and only access speci c les on a website that are to be used for nancial analysis. In ana- lyzing such information, their systems iden- tify new sources of information and analyze existing resources to optimize trading by the organization and to adjust nancial models, often automatically.
Legal Questions
Depending on how such web crawling is conducted, it could implicate the rights of the content owner, as well as the website operator. Early cases analyzed web crawling technology through the lens of trespass law and similar rights.2 It, however, did not take long for content owners to bring claims under copyright law and other intellectual property disciplines against those using web crawling technology.3 Today, claims have been raised under a range of legal disciplines from breach of contract to trade secrets misappropriation to other forms of unfair competition.
One legal issue that merits particular atten- tion is the CFAA, a criminal and civil statute that “prohibits acts of computer trespass by those who are not authorized users or who exceed authorized use.”4 While some have attempted to limit the CFAA’s reach by refer- ring to it as merely an “anti-hacking” statute,5 courts have found that web crawling technol- ogy potentially can violate the Act.6
All courts to have considered the issue agree that a company using web crawl- ing technology “can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly.”7 Permission can be revoked in a number of ways, including issu- ance of a cease and desist letter, implementing technological measures such as IP address blocking, or revoking login credentials.8
The courts, however, differ in their approach to those that are given some access but have “exceeded the limits of their autho- rization” by retrieving material for unauthor- ized purposes.9 As the Ninth Circuit recently
Legal Boundaries
BY JOSHUA L. SIMMONS
W ebpages are a treasure-trove of use- ful information for nancial rms and software companies that are able to
capture it using web crawling (or scraping) technology. Yet, for over 20 years, courts have
JOSHUA L. SIMMONS is an intellectual property part- ner at Kirkland & Ellis. He can be reached at joshua. [email protected].
struggled to draw the line between the useful- ness of such information and the rights of the content owners and website operators from which that content is derived. Once a niche issue, the increased use of this technology has compounded the disputes related to it.
In particular, website operators have used the Computer Fraud and Abuse Act (CFAA) to prevent crawling of their websites. While recent judicial opinions have harmonized the rules for accessing websites without authori- zation, the courts diverge as to whether the CFAA prohibits accessing otherwise publicly
available information for an unauthorized pur- pose. Moreover, new web crawling techniques are testing the limits of existing case law.1
Increased Use of Web Crawling
Whether a nance rm engaged in quantita- tive analysis or a software company develop- ing new search algorithms, technology-mind- ed businesses are routinely and automatically accessing third-party websites every day using variations on web crawling to gather content and information. Generally, they start
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