Operators of public-facing websites are typically concerned about the unauthorized, technology-based extraction of large volumes of information from their sites, often by competitors or others in related businesses. The practice, usually referred to as screen scraping, web harvesting, crawling or spidering, has been the subject of many questions and a fair amount of litigation over the last decade.
This case is a particularly interesting scraping case because QVC is seeking damages for the unavailability of their website, which QVC alleges to have been caused by Resultly. This is an unusual theory of recovery in these types of cases. For example, this past summer, LinkedIn settled a scraping dispute with Robocog, the operator of HiringSolved, a “people aggregator” employee recruiting service, over claims that the service employed bots to register false accounts in order to scrape LinkedIn member profile data and thereafter post it to its service without authorization from Linkedin or its members. LinkedIn brought various claims under the DMCA and the CFAA, as well as state law claims of trespass and breach of contract, but did not allege that their service was unavailable due to the defendant’s activities. The parties settled the matter, with Robocog agreeing to pay $40,000, cease crawling LinkedIn’s site and destroy all LinkedIn member data it had collected. (LinkedIn Corp. v. Robocog Inc., No. 14-00068 (N.D. Cal. Proposed Final Judgment filed July 11, 2014).
However, in one of the early, yet still leading cases on scraping, eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000), the district court touched on the foreseeable harm that could result from screen scraping activities, at least when taken in the aggregate. In the case, the defendant Bidder’s Edge operated an auction aggregation site and accessed eBay’s site about 100,000 times per day, accounting for between 1 and 2 percent of the information requests received by eBay and a slightly smaller percentage of the data transferred by eBay. The court rejected eBay’s claim that it was entitled to injunctive relief because of the defendant’s unauthorized presence alone, or because of the incremental cost the defendant had imposed on operation of the eBay site, but found sufficient proof of threatened harm in the potential for others to imitate the defendant’s activity.
It remains to be seen if the parties will reach a resolution or whether the court will have a chance to interpret QVC’s claims, and whether QVC can provide sufficient evidence of the causation between Resultly’s activities and the website outage.