Call them spiders. Call them robots. Call them bargain hunters (or one heck of a nuisance); they’re software programs with a mission: to hunt down information and bring it back. Many search engines couldn’t live without these electronic assistants to help them keep track of the proverbially explosive growth of the Web. Certainly they can save a lot of time when you’re trying to comparison shop online — just let a spider do the hunting and bring back the results. This is all well and good, unless the owner of the site doesn’t take kindly to spiders. eBay won an injunction against Bidder’s Edge that forced BE to stop sending spiders to eBay’s Web site in search of auctions. But a somewhat similar-looking court case was just recently decided in favor of the spider-wrangling plaintiff. Does this have wider implications for information aggregators who use spiders?
First, let me give my disclaimer: I am not a lawyer, nor do I play one on TV. So check with someone who eats, drinks, and breathes this stuff before you do anything drastic. That said, let’s take a look at the cases at hand.
The more recent case was just decided early in April, in a district court in Florida. It involves two companies with Web sites that list yachts for sale…which may in part explain why this case did not attract the kind of attention that the earlier eBay case did. (There are more people interested in buying Beanie Babies than buying big boats.) Anyway, the older Web site in this case is owned by Boats.com, who, for the past nine years, has owned and operated Yachtworld.com, a Web site on which yacht brokers could post information about the big boats they have for sale — sort of like electronic classified ads, with more interactivity. Enter Nautical Solutions Marketing, in 2001, with their Web site, Yachtbroker.com — and two services that Boats.com complained blow them right out of the water.
The first service is the more interesting one for our purposes (though they’re both relevant) because it’s that service which directly involves the use of a spider. Cleverly named “Boat Rover,” this software program would connect to a targeted Web site, extract specific facts about a yacht for sale from a public yacht listing, collect those facts, and enter them in a searchable database. Boat Rover did not hold onto the HTML used in the listing; it copied it just long enough to get the facts, then discarded it. Yes, this matters — because this case was dealing with a question of copyright infringement. Specifically, did NSM infringe any copyrights when it sent Boat Rover to Yachtworld.com repeatedly between November, 2001, and April, 2002, to collect information which it then posted on its own Yachtbroker.com Web site?
Not according to Judge Merryday, who presided over the case. I’m sure you’d love to hear that it was a simple “no,” thus reaching a decision once and for all in favor of spiders running rampant, but anyone who’s ever had reason to consult a lawyer knows how unlikely that would be. Legal cases involving high technology, especially the Internet, tend to be less cut-and-dried. In this case, two important points were raised in consideration of whether any copyrights were infringed. First, what kind of information was Boat Rover collecting? In this case, it was just the facts: manufacturer, model, length, year of manufacture, price, location, and the URL of the Web page that contained the yacht listing. Well, fortunately for NSM (and Joe Friday), there’s an existing precedent that states that facts cannot be copyrighted; facts are part of the public domain, and thus there can be no question of copyright infringement. There’s no copyright to infringe!
The second aspect of this service that might have opened NSM up to charges of copyright infringement involved displaying these listings on its Web site. Remember when I mentioned that Boat Rover’s discarding the HTML information was important? That meant that NSM had to code the information without using Boats.com’s coding as a template — in theory, at least. And in fact, Judge Merryday found enough differences between the “look and feel” of a Yachtworld.com listing and a Yachtbroker.com listing to keep NSM in the clear over possible copyright infringement. The judge wouldn’t even grant Boats.com a copyright on its use of descriptive headings like “electrical,” “accommodations,” and “galley” to describe specific features of a yacht — because the terms were industry standards, and at least two other yacht brokering Web sites were using those terms in the very same way. The legal reasoning seems to go something like this: ideas themselves do not receive copyright protection. Expression of a particular idea does. However, in some cases, the ways to express a particular idea are so limited that the expression doesn’t receive copyright protection, because that would be just like protecting the idea. In this case, there’s only so many headings you can use for various areas of a yacht when listing it for sale, so — like facts — they don’t receive copyright protection.
The second service that NSM offered its customers was a “valet service.” With the permission of a yacht broker using the service, NSM would move, delete, or modify the yacht broker’s listing. Boats.com complained that NSM’s people were copying and pasting listings from Yachtworld.com over to Yachtbroker.com. The court found strong enough evidence that the only items being cut and pasted were descriptions and pictures, not HTML or anything that Boats.com could claim a copyright to. In fact, the court found (and both NSM and Boats.com agreed) that the yacht brokers themselves owned the copyrights to their own listings — and, since NSM was doing its thing with their permission, they weren’t infringing any copyrights.
Interestingly, this case was a “pre-emptive strike;” NSM was the plaintiff. They brought the suit seeking a declaration that they did not infringe any copyright owned by Boats.com. And they won, too.
I imagine you can all see how this has relevance for spiders and those who aggregate information about specific products…or even auctions. So, does this mean that spiders can go out and disregard those software-based warnings from Web sites telling them that they’re not welcome? Does this take eBay’s winning of an injunction against Bidder’s Edge and turn it on its head?
You’d think it would. On the face of it, the two cases look similar. Bidder’s Edge, an auction aggregation site, was sending spiders to eBay to collect information on eBay’s auctions. BE would then aggregate eBay’s auction information along with auction info from many other auction Web sites, making it a “one-stop shop” for that kind of information. eBay wanted them to stop — and, in fact, was able to legally force them to stop.
That is where the similarities between the two cases end. You see, eBay didn’t claim that Bidder’s Edge was infringing its copyright — or, at least, the court didn’t grant the injunction based on a claim of copyright infringement. Oh no. eBay claimed that Bidder’s Edge was trespassing! Bidder’s Edge admitted that it was sending 80,000 to 100,000 queries a day to eBay’s Web site, and eBay argued that that was akin to sending 80,000 to 100,000 robots into a bricks-and-mortar business looking for prices and not buying anything. Well, the court was skeptical of that argument, but not of certain other arguments. Specifically, eBay was able to point out that Bidder’s Edge’s spiders were using up eBay’s computer capacity, after eBay had told BE more than once that it was not welcome to use its spiders on eBay’s Web site. At that time, it was only using less than two percent of eBay’s capacity — but the principle in this case wasn’t the amount of capacity it was using up, but that it was using that capacity after eBay told it not to. A Web site might not actually be real estate in the same way that land is — but there is no question that computers and servers are property that can be owned. And Bidder’s Edge was using eBay’s computers in ways that eBay specifically told it that it wasn’t allowed to do. What would you do if you told someone not to use your computer in a particular way and they kept doing it? Uh-huh, that’s what I thought. In eBay’s case, they were granted an injunction against Bidder’s Edge in late May 2000.
So what does Nautical Solutions Marketing vs. Boats.com add to the sometimes-controversial issue of spiders? Well, first off, just because something was copied from a Web site — even by a robot — doesn’t mean that the person or company doing it is committing copyright infringement. Especially if it’s essentially factual information. On the other hand, that also doesn’t mean that they’re not in hot water. If you’re a spider wrangler, make sure your spiders check to see whether they’re welcome on the Web sites they visit — and don’t try to force the issue. It’s a big Web out there; there’s plenty of cyberspace for spiders to crawl without looking for trouble.