[Air-L] Web scraping is legal, US appeals court reaffirms

[Peter Timusk]

Other countries courts may have different results. Canada rules differently
on some IP topics like the onco mouse for example.

On Tue, Apr 19, 2022 at 4:39 PM Joly MacFie via Air-L <
air-l at listserv.aoir.org> wrote:

> https://techcrunch.com/2022/04/18/web-scraping-legal-court/
>
> Web scraping is legal, US appeals court reaffirms
> Zack Whittaker at zackwhittaker / 12:16 PM PDT•April 18, 2022
>
> Good news for archivists, academics, researchers and journalists: Scraping
> publicly accessible data is legal, according to a U.S. appeals court
> ruling.
>
> The landmark ruling by the U.S. Ninth Circuit of Appeals is the latest in a
> long-running legal battle brought by LinkedIn aimed at stopping a rival
> company from web scraping personal information from users’ public profiles.
> The case reached the U.S. Supreme Court last year but was sent back to the
> Ninth Circuit for the original appeals court to re-review the case.
>
> In its second ruling on Monday, the Ninth Circuit reaffirmed its original
> decision and found that scraping data that is publicly accessible on the
> internet is not a violation of the Computer Fraud and Abuse Act, or CFAA,
> which governs what constitutes computer hacking under U.S. law.
>
> The Ninth Circuit’s decision is a major win for archivists, academics,
> researchers and journalists who use tools to mass collect, or scrape,
> information that is publicly accessible on the internet. Without a ruling
> in place, long-running projects to archive websites no longer online and
> using publicly accessible data for academic and research studies have been
> left in legal limbo.
>
> But there have been egregious cases of web scraping that have sparked
> privacy and security concerns. Facial recognition startup Clearview AI
> claims to have scraped billions of social media profile photos, prompting
> several tech giants to file lawsuits against the startup. Several
> companies, including Facebook, Instagram, Parler, Venmo and Clubhouse have
> all had users’ data scraped over the years.
>
> The case before the Ninth Circuit was originally brought by LinkedIn
> against Hiq Labs, a company that uses public data to analyze employee
> attrition. LinkedIn said Hiq’s mass web scraping of LinkedIn user profiles
> was against its terms of service, amounted to hacking and was therefore a
> violation of the CFAA. LinkedIn first lost the case against Hiq in 2019
> after the Ninth Circuit found that the CFAA does not bar anyone from
> scraping data that’s publicly accessible.
>
> On its second pass of the case, the Ninth Circuit said it relied on a
> Supreme Court decision last June, during which the U.S. top court took its
> first look at the decades-old CFAA. In its ruling, the Supreme Court
> narrowed what constitutes a violation of the CFAA as those who gain
> unauthorized access to a computer system — rather than a broader
> interpretation of exceeding existing authorization, which the court argued
> could have attached criminal penalties to “a breathtaking amount of
> commonplace computer activity.” Using a “gate-up, gate-down” analogy, the
> Supreme Court said that when a computer or website’s gates are up — and
> therefore information is publicly accessible — no authorization is
> required.
>
> The Ninth Circuit, in referencing the Supreme Court’s “gate-up, gate-down”
> analogy, ruled that “the concept of ‘without authorization’ does not apply
> to public websites.”
>
> “We’re disappointed in the court’s decision. This is a preliminary ruling
> and the case is far from over,” said LinkedIn spokesperson Greg Snapper in
> a statement. “We will continue to fight to protect our members’ ability to
> control the information they make available on LinkedIn. When your data is
> taken without permission and used in ways you haven’t agreed to, that’s not
> okay. On LinkedIn, our members trust us with their information, which is
> why we prohibit unauthorized scraping on our platform.
>
> --
> --------------------------------------
> Joly MacFie  +12185659365
> --------------------------------------
> -
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