United States: Web Scraping Decisions Consider Contract Cause Of Action

Two recent web scraping disputes highlight some important issues regarding whether a website owner may successfully allege a breach of contract action against a commercial party that has scraped website content contrary to "clickwrap" and "browsewrap" website terms of use.

In Southwest Airlines Co. v. Roundpipe, LLC, No. 18-0033 (N.D. Tex. Mar. 22, 2019), a Texas district court declined to dismiss Southwest Airlines Co.'s ("Southwest") breach of contract claim against an entity that scraped airfare data from Southwest's site in violation of the website terms of use. Southwest brought multiple claims against Roundpipe, LLC ("Roundpipe") after it discovered that Roundpipe had created a website, SWMonkey.com, that, using scraping, sent consumers notifications if their Southwest ticket prices decreased after purchase (which would presumably allow them to exchange the original ticket for a lower-priced ticket).

Southwest's website terms prohibited scraping or the use of any automated tools to access its fares or other content. Soon after the launch of SWMonkey, Southwest sent a cease and desist letter stating that Roundpipe was obtaining Southwest's data in violation of the website terms, among other reasons, and demanded that the site be taken down. After negotiations and additional correspondence from Southwest, Roundpipe shut down the website and disabled its scraping and fare tracking functionality.

Although it stopped scraping, Roundpipe kept the disabled SWMonkey site active and created a FAQ that included a link to an open source tool that users could use to automatically check fares on their own. Not amused, Southwest demanded that this modified site be taken down. When Roundpipe refused– considering the matter already settled – litigation ensued. Southwest filed suit for breach of contract, unfair competition, trademark infringement and violations of the Computer Fraud and Abuse Act (CFAA) and its state law counterpart.

In its motion to dismiss, Roundpipe brought several arguments beyond the scope of this post (including an anti-SLAPP defense and an interesting contractual estoppel theory that argued that Southwest had implicitly agreed not to sue if Roundpipe complied with its C&D letters, a defense the court declined to consider in its discretion as it would involve factual issues outside the pleadings). Regarding the breach of contract claim, the court concluded that Southwest's complaint stated a plausible claim because Southwest pled the existence of a valid contract (e.g., website terms) and Southwest explained how Roundpipe's scraping breached the terms and caused damage to Southwest. The court necessarily assumed, without much analysis, that Southwest's website terms were enforceable against Roundpipe. The decision does not offer great detail into how Southwest's website terms were presented but it appears that the terms were a browsewrap agreement. Without going into any analysis of whether Roundpipe had actual or constructive notice of such terms, the court appears to have assumed that Roundpipe had notice of the browsewrap terms because Southwest had sent multiple cease and desist letters informing Roundpipe of its violation of the terms (a holding that would accord with the recent CouponCabin scraping dispute, where an Illinois court allowed a contract claim to go forward based on the allegation that the defendant received the C&D letter from website operator that highlighted the terms yet still continued to access the site despite this knowledge).

Following the decision, in May 2019, the parties settled the matter and Roundpipe entered into a consent judgment and permanent injunction barring it from, among other things, scraping airfares from Southwest's site or otherwise accessing the site in violation of the terms.

This past May another scraping-related controversy was decided that touched on similar contractual claims. In Int'l Council of Shopping Ctrs., Inc. v. Info Quarter, LLC, No. 17-5526 (S.D.N.Y. May 7, 2019), the Southern District of New York granted the plaintiff's request for a default judgment on some scraping-related claims (e.g., unfair competition and a permanent injunction on its Lanham Act cause of action), and left intact, but refused to grant a default judgment on its breach of contract claim because the plaintiff did not sufficiently specify a measure of damages in its petition.

The plaintiff, Int'l Council of Shopping Centers, Inc. ("ICSC"), a trade organization, brought suit against Info Quarter, LLC ("Info Quarter"), an offshore data miner that allegedly scraped and copied ICSC's membership listings and used the directory data to send sales solicitations to ICSC members. According to the complaint, as the defendant registered for an ICSC membership to access to member directory, the defendant necessarily was required to agree to the ICSC Terms and Conditions for Membership ("Membership Terms"), which prohibited copying the proprietary ICSC membership directory. The defendant also registered for ICSC events and agreed to a separate Event Registration Terms and Conditions. ICSC claimed that both agreements expressly required registered users to observe and abide by additional terms or conditions communicated to the user, including the website terms communicated via a browsewrap agreement (which contained a forum selection clause).

ICSC advanced several causes of action, most notably, breach of contract and unfair competition. In a September 2018 ruling, the court refused to dismiss the breach of contract claim, finding that the defendant had actual or constructive notice of the Membership terms due to its registration on the ICSC website. Moreover, in enforcing the forum selection clause contained in the ICSC website terms, the court noted even if the only contractual terms at issue were presented as a browsewrap, that "browsewrap agreements are typically only enforced in cases that 'have involved users who are businesses.'" Accepting the allegations of plaintiff's complaint as true, the court deemed the defendant a "sophisticated party" and therefore assumed that the defendant was on notice, or had constructive notice, of ICSC's website terms and the forum selection clause it contained.

In all, both cases shed some light into the availability of a breach of contract action against entities engaged in unwanted web scraping contrary to website terms, particularly in the uncertain area of law surrounding the enforcement of browsewrap agreements. The cases suggest that the enforceability of website terms may, in some cases, be contingent on instances of actual or constructive notice of the terms that occur outside ordinary access of a website (e.g., acceptance of related agreements that reference the website terms, receipt of a cease and desist letter outlining the terms and the recipient's violations of said terms, or being a sophisticated commercial party that presumably may be deemed to have constructive notice of a website browsewrap agreement).

In addition, in the Southwest dispute, Roundpipe raised an interesting argument that it did not believe its scraping activities were unlawful because scraping public website data was not against the law – a view shared by many website aggregators and digital rights advocates that assert that usefulness of the open internet rests upon the free exchange of public data. Indeed, the landmark hiQ decision (currently pending in the Ninth Circuit) addressed similar reasoning. We await the issuance of the Ninth Circuit's decision in hiQ, as the resolution of this unsettled issue will certainly impact the openness of website data for both established sites and upstarts in the marketplace.

Web Scraping Decisions Consider Contract Cause Of Action

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions