UPDATE: On November 1, 2018, the court dismissed the plaintiff’s amended complaint (which apparently dropped the CFAA claim and asserted Lanham Act and DMCA claims). Specifically, the plaintiff asserted, among other things, that defendant removed the copyright management information (CMI) from plaintiff’s listings and website source code. The court ruled that plaintiff failed to show that the generic copyright notice at the footer of each web page covered the listings and images that the defendant allegedly scraped, noting that “websites generally do not claim ownership or authorship over an image just because the image appears on the website.” With no evidence that the defendant removed or altered any CMI from the listings it allegedly scraped, the court held that the DMCA claim failed. Following the filing of a second amended complaint, the court, on March 22, 2019, dismissed the action, with prejudice. Regarding the DMCA claim, the court stated that it was “simply not reasonable to expect a viewer of the website to understand that each photograph was subject to protection when there is nothing near the photographs indicating who owns them. Had Alan Ross intended to assert copyright protection for the photographs it owned, it should have included a watermark or other mark on or near the listings, rather than a general copyright notice at the bottom of the page that does not indicate to what it refers.” The court ruled that a general copyright notice on the bottom of a webpage is not CMI “conveyed in connection with” photographs and listings contained on those webpages. Lastly, the court held that the link to plaintiff’s website terms was also not CMI “conveyed in connection with the work” because the terms were located on a separate page than the listings that were allegedly scraped and did not expressly state ownership of the images and listings, merely that unauthorized copying is prohibited. Following the dismissal, the plaintiff filed a notice of appeal to the Seventh Circuit.
This past week, an Illinois district court dismissed, with leave to amend, claims relating to a competitor’s alleged scraping of sales listings from a company’s website for use on its own site. (Alan Ross Machinery Corp. v. Machinio Corp., No. 17-3569 (N.D. Ill. July 9, 2018)).
The court dismissed a federal Computer Fraud and Abuse Act (CFAA) claim that the defendant accessed the plaintiff’s servers “without authorization,” finding that the plaintiff failed to plead with specificity any damage or loss related to the scraping and did not allege that the unlawful access resulted in monetary damages of $5,000 or more as required to maintain a civil action under the CFAA. In the court’s view, the “mere copying of electronic information from a computer system is not enough to satisfy the CFAA’s damage requirement.” The court also dismissed plaintiff’s breach of contract claims, concluding that defendant did not have notice of the plaintiff’s website terms and conditions based upon an unenforceable browsewrap agreement.