Database builder faces web-scraping lawsuit

Out-Law News | 29 Apr 2010 | 9:07 am | 3 min. read

A US company faces a copyright, trespass and trade secrets lawsuit because it 'scraped' the website of a rival on behalf of a client. The case underlines the legal uncertainty surrounding the practice.

Website 'scraping' is the practice of automatically taking information from a website and can be used to retrieve the contents of entire back-end databases from other websites.

The legality of scraping is unclear in the UK and the US. Uncertainty still surrounds the degree to which it is copyright infringement, hacking, a violation of database rights or a breach of other laws.

Snap-on Business Solutions hopes that an Ohio court agrees with it that scraping is a violation of several laws. It has lodged a claim against O'Neil Associates over activity surrounding Mitsubishi's moving of outsourced work from Snap-on to O'Neil.

Snap-on built a parts database for Mitsubishi so that dealers could access spare parts. It later moved the work to O'Neil and asked Snap-on for the database, which it saw as its property.

Snap-on, though, said that Mitsubishi would have to pay an extra fee to be given a copy of the database it had built.

O'Neil told Mitsubishi that it could 'scrape' the website to retrieve all the elements of the database. Mitsubishi gave it login details so that this could happen. Snap-on claims that this constituted an unlawful access to its database and unlawful copying of it.

Snap-on and O'Neil are competitors in the business of building spare parts databases for manufacturers and Snap-on had constructed the database from paper catalogues, manuals and photographs supplied by Mitsubishi.

When Mitsubishi was discussing it taking over the database work O'Neil said that it could scrape the Snap-on site. Mitsubishi gave O'Neil 30 logon details to reduce the chance of detection of the scraping, an employee said in testimony to the Ohio court.

That scraping process caused the Snap-on site to crash, though, and the company, realising what had happened, sued O'Neil.

Snap-on claims that O'Neil broke parts of the Computer Fraud and Abuse Act when it "caused damage" by unlawfully accessing its computers. O'Neil said that it was authorised by Mitsubishi to access Snap-on's computers.

The Ohio court was being asked to issue a summary judgment on the case and it said that there was enough doubt about whether or not Mitsubishi had the right to authorise that access that the case must proceed to a full trial.

Snap-on also said that O'Neil broke contract law by violating the terms of an end user agreement that came into effect each time it accessed the website. O'Neil disputed that it was party to any agreement, and the judge said that a trial would be necessary on this issue, as well as the issues of whether the activity broke trespass and copyright laws.

If the activities had happened in the UK a court would also have to consider whether or not it broke the database rights created by EU law. This right gives protection separate to copyright to databases and was brought into force to protect the investment companies would have to make to compile a database.

A ruling from the European Court of Justice in 2004 cast doubt on exactly how much protection database law gives to the back end of websites. Bookmaker William Hill successfully argued at the European Court of Justice that the British Horseracing Board (BHB) could not protect its database of races using the database right.

The Court agreed with the gambling company that the database was a by-product of the BHB's main activity, which was organising horse races. Making the database, then, did not demand the kind of effort that required the law's protection, it successfully argued.

However, a ruling from the European Court of Justice in 2008, on a case involving an anthology of German poetry, and a ruling last year in the English High Court, suggest that web scraping could still fall foul of the database right.

Struan Robertson, a technology lawyer at Pinsent Masons, the law firm behind OUT-LAW.COM, said that scraping can be challenged in the UK on a number of grounds.

"The database right may be the strongest argument against web scraping, but there can be other arguments, including copyright infringement, breach of contract and breach of the Computer Misuse Act," he said. "Some businesses will scrape other sites until they're told to stop, because they gamble that nobody will mind, and if they do, they probably won't sue, provided the demand to stop is fulfilled. To carry on in spite of such a demand, though, is to take a pretty big risk."