Originally Published April 25, 2005
The Internet is the world’s largest repository of information. To cull the Internet trove efficiently, many parties have deployed automated search tools, often referred to as crawlers or spiders, to "mine" data residing on other Web sites. The "harvested" data can then be compiled in various forms. Such practices have allowed content providers to aggregate data useful and convenient for specific purposes. Some, however, have alleged that this automated practice of gathering data is a trespass, or is otherwise illegal or unsavory.
A northern California District Court in Cairo Inc. v. Crossmedia Services Incorporated, No. C 04- 04825 JW, 2005 WL 756610 (N.D. Cal. Apr. 1, 2005), recently added its two cents to this debate. Depending on your point of view, the Cairo court either upheld the right of parties to prevent automated data mining of their Web sites or jeopardized the activity of search engines and other useful Internet applications.
Crossmedia Services (CMS) took promotional material from its retail corporate customers and created interactive versions of the materials for shoppers to view on various Web sites. A shopper who clicked on one of the retailers’ Web sites was directed to a Web site hosted by CMS. After entering her zip code, she was sent to the promotional materials applicable to nearby stores of the retailer.
In most cases, every Web page hosted by CMS displayed its name and logo and a notice: "By continuing past this page and/or using this site, you agree to abide by the
Cairo Inc. was a data miner. Its Web site allowed users to search its database of in-store sales information. This information was compiled from retailers’ weekly updates to their own Web pages, some of which were hosted by CMS. Cairo’s Web crawlers/spiders automatically visited retailers’ Web sites, recorded the relevant sales information, and returned with the data to a database maintained by Cairo. Cairo’s automated robots could not read the terms of use, and Cairo claimed it didn’t actually know whether the searched Web pages had terms of use or not, let alone what the terms might say.
Users of Cairo’s Web pages got thumbnail images and text, which were versions of the "mined" data from CMS’s and others’ Web pages. If a Cairo user clicked on the thumbnail image, she was directed, via a deep link, to a CMS Web page that had a larger, searchable, interactive version of the relevant information.
CMS discovered that Cairo was copying the promotional materials through its mining (allegedly thousands of times a month) and posting the thumbnail versions on Cairo’s Web site. CMS sent a letter to Cairo saying Cairo had breached the terms and demanding that Cairo cease its illegal conduct. Cairo subsequently filed a declaratory judgment action to persuade the court that Cairo’s use of the CMS Web sites was proper. In response, CMS relied on the forum selection clause in its terms of use and filed a motion to dismiss the suit in California and move it to Chicago, where CMS was based. Cairo countered that no one at Cairo was aware of the forum selection clause in the terms of use and that Cairo had not assented to the terms in any way.
The issue before the court was whether to grant CMS’s motion to dismiss because Cairo was bound by the terms of use.
According to the court, while the Internet created new situations, fundamental contract laws still applied. Thus, if Cairo knowingly decided to take an offer or benefit subject to conditions, it would be bound by those conditions. Distinguishing Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) (users who downloaded Netscape software were not bound to Netscape’s terms because they were not prominently available, and users did not see, and did not have to "click-through," any terms to access the software), the court imputed knowledge of the terms of use to Cairo because of its repeated and automated use of the CMS Web sites (citing Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 401-02 (2d Cir. 2004)). Consequently, the court granted CMS’s motion to dismiss Cairo’s plea for declaratory relief.
Perhaps Cairo should not have been surprised. Based on the theory that spiders trespassed on eBay’s computer systems, the Northern District of California Court had earlier granted (most of) eBay’s request for an injunction to prevent an entity similar to Cairo from Web crawling eBay’s auction sites. See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (D.C. No. Calif. 2000). And while the court seemed willing to allow minor trespass or data harvesting on an occasional basis, it would not tolerate data mining in a wholesale manner. More troubling, at least for some, is that the court’s decision means that those who use spiders and similar automated technologies are bound by each Web site’s terms of use—which the spiders don’t read—even without any express evidence of a meeting of the minds.
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