Online Commerce

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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.

However, despite the litigation in this area, the state of the law on this issue remains somewhat unsettled: neither scrapers looking to access data on public-facing websites nor website operators seeking remedies against scrapers that violate their posted terms of use have very concrete answers as to what is permissible and what is not.

In the latest scraping dispute, the e-commerce site QVC objected to the Pinterest-like shopping aggregator Resultly’s scraping of QVC’s site for real-time pricing data.  In its complaint, QVC claimed that Resultly “excessively crawled” QVC’s retail site (purpotedly sending search requests to QVC’s website at rates ranging from 200-300 requests per minute to up to 36,000 requests per minute) causing a crash that wasn’t resolved for two days, resulting in lost sales.  (See QVC Inc. v. Resultly LLC, No. 14-06714 (E.D. Pa. filed Nov. 24, 2014)). The complaint alleges that the defendant disguised its web crawler to mask its source IP address and thus prevented QVC technicians from identifying the source of the requests and quickly repairing the problem.  QVC brought some of the causes of action often alleged in this type of case, including violations of the Computer Fraud and Abuse Act (CFAA), breach of contract (QVC’s website terms of use), unjust enrichment, tortious interference with prospective economic advantage, conversion and negligence and breach of contract.  Of these and other causes of action typically alleged in these situations, the breach of contract claim is often the clearest source of a remedy.

On November 12, 2014, the California Supreme Court denied review of the California Court of Appeals decision in Demetriades v. Yelp, Inc., 2014 WL 3661491 (Cal. App. July 24, 2014), which allowed a restaurant owner to proceed with false advertising and other claims against the consumer review site Yelp based…

The lame duck Congress that reconvened following the November elections wasn’t expected to do much, but some legislation got pushed out at the eleventh hour (or perhaps, the one-hundred-and-eleventh hour), including the “Restore Online Confidence Act,” S. 3386 (111th Cong., 2d Sess. 2010), sponsored by Sen. John D. Rockefeller, IV.…

Let’s say that anybody could write comments on your Web site that were visible to third parties and that you couldn’t prevent it. Those comments might include links to competitive Web sites or products, defamatory statements, or just unwelcome negative comments. And let’s say that your only recourse, if you felt the comments were inappropriate, would be to e-mail a complaint to an enormous media company that might or might not agree that the comments should be removed.

Well, if you download and install the Google Toolbar, and navigate to your Web site, you can find out if that is happening on your site right now.

A we discussed in October at our 15th annual seminar (“New Media, Technology and the Law:
Issues on the Near Horizon,” Google recently debuted the “Sidewiki” function on the Google Toolbar. Google touts the Sidewiki functionality as allowing users “to contribute helpful information next to any  webpage.” But brand managers and Web site owners may not think that some of the information that is contributed by users of the Sidewiki functionality is “helpful” at all.

In Doe v. SexSearch.com, Inc., the Sixth Circuit considered the appeal of a user of the SexSearch online dating service from dismissal of his breach of contract, fraud and other state law claims (based on Ohio law) against the service for its failure to screen out underage minors. Doe was arrested and charged with unlawful sexual conduct with a minor for his encounter with a fourteen year old who represented herself on the service as eighteen. As the opinion notes, the charges were later dismissed and the record sealed for reasons undisclosed, but Doe subsequently brought suit claiming that the service was at fault for his relationship with the minor and for the resulting harm caused by his arrest.

In a relatively brief opinion, the court upheld the district court’s dismissal of each of Doe’s 14 causes of action for failure to state a claim, based in large part upon the disclaimers contained in the Terms and Conditions in the contract.