bajubakait-ga,
Thanks for a most interesting question.
As far as I know, there is little or no law anywhere in the world that
directly addresses the practice of screen scraping.
The internet is simply too new for legislation to have fully caught up
to all the legal issues that it presents. And where legislation has
been passed, it tends to focus on the major issues of cyber-security,
privacy, pornography, and spam, rather than the important -- but less
visible -- practice of screen scraping.
This is not to say that there is no law that applies to the practice.
All content, whether on the web or otherwise, is protected by
copyright and other intellectual property law to various degrees, and
a business is also generally protected against practices deemed
blatantly unfair (though with the usual difference of opinion as to
what is or is not fair practice).
Cyber-law in India is a good case in point. But before proceeding any
further, though, let me point out the disclaimer at the bottom of the
page -- Google Answers is not a substitute for professional legal
advice, so take everything here with the appropriate grains of salt.
Back to India. The main law that directly address practices on the
internet, and that describes various offences in cyberspace, is The
Information Technology Act of 2000. You can find a full copy of the
act here:
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN002959.pdf
though it might be easier, for starters, to make use of this overview
of the law, written by one of India's pre-eminent authorities on
cyberlaw:
http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan002090.pdf
India's Information Technology Act, 2000
...India's first cyber law makes punishable cyber crimes like hacking,
damage to computer source code, publishing of information which is
obscene in the electronic form, breach of confidentiality and privacy,
and publication of digital signature certificate false in certain
particulars, says noted Supreme Court advocate Pavan Duggal.
As the law and the summary show, the main offences defined in the
Information Technology Act focus on tampering with source code,
disruptive hacking, obscenity, and, in effect, forgery of digital
signatures. There is nothing in the Act that specifically addresses
screen scraping.
By the way, the Information Technology Act in India was designed
around a piece of model legislation developed by the UN, so the
principles embodied in the act are commonly found in similar pieces of
legislation around the world.
In my searches, I did not find any screen-scraping legal cases that
have gone to court in India.
===============
Of course, the fact that screen scraping is not specifically addressed
in the laws does not mean that controversies won't arise over the
practice. One of the most active areas of dispute over
screen-scraping involves the airlines, and their online fare offers.
The airlines consider their fare-management systems to be part of
their proprietary property. Outside firms that scrape the fares from
an airlines site have been sued over the practice.
As I said, I am not aware of any cases in India along these lines.
There have been a few in the US, and since I am most familiar with US
law, I have focused my review on a few key US cases.
None of the case law that I am familiar with is at anything resembling
a final stage. There have been preliminary decisions, appeals have
been filed, and there have been several out-of-court settlements.
However, there are not yet any firm rules of the road regarding screen
scraping.
One of the first major tests of screen scraping involved American
Airlines, and a firm called FareChase:
http://cyberlaw.stanford.edu/about/cases/american_airlines_v_farec.shtml
American Airlines v. FareChase
...AA successfully obtained an injunction from a Texas trial court,
stopping FareChase from selling software that enables users to
comparison shop for webfares if it also searches American's website.
The airline argued that FareChase's websearch software trespassed on
American's servers when it collected the publicly available data.
As you can see, the airlines won the first round, and convinced the
court to issue an injunction temporarily preventing FareChase from
further screen-scraping of their site. However, the injunction is
being appealed, and the cases are still in motion.
You can read FareChase's actual legal argument appealing the decision here:
http://cyberlaw.stanford.edu/about/cases/FareChase%20Opening%20Brief.pdf
BRIEF OF APPELLANT, FARECHASE, INC
Southwest Airlines has also challenged screen-scraping practices, and
has involved both FareChase and another firm, Outtask, in legal
tussles:
http://www.btnmag.com/businesstravelnews/headlines/frontpage_display.jsp?vnu_content_id=1000495420
...Yet, given Southwest's legendary control over distribution, it is
not happy with any access it has not explicitly authorized. "As far as
we know, neither of them are screen scraping our site," Brown said of
Galileo and Expedia, "but we will do everything we can to defend our
rights and our property. We want to make sure that nothing we do lends
itself to someone charging us fees down the road." He reiterated
Southwest's insistence that no outside entity secure automated access
to the carrier's fares and inventory.
...The airline continues a legal battle to prevent travel technology
provider Outtask from accomplishing that objective. The parties are in
the process of mediation, according to a Southwest spokesperson, and
"dialogue has not been amicable." An Outtask motion to dismiss half of
Southwest's claims was denied last month by the Texas judge overseeing
the case. However, according to court documents, Outtask last month
stopped scraping fares and inventory from southwest.com.
...Meanwhile, Southwest expects "a very peaceful agreement" with
FareChase, which also was named in the Outtask lawsuit. "FareChase
ceased screen scraping some time ago, so the ins and outs of mediation
may not be necessary," said the Southwest spokesperson.
It is interesting to look at Southwest Airlines v FareChase and
Outtask in detail, as it lays out the many different legal complaints
filed in the case. Unfortunately, the full text is not available
online, but I was able to access it through a subscription database.
In sum, Southwest Airlines is charging that the screen-scraping is
illegal for any and all of the following reasons:
The screen scraping is an example of "Computer Fraud and Abuse", and
specifically, has led to "Damage and Loss", and to "Unauthorized
Access" of Southwestern's site. It also constitues "Interference with
Business Relations", "Trespass" and "Harmful Access by Computer".
Furthermore, the screen-scraping consitutes what is legally known as
Misappropriation and Unjust Enrichment, and is also a breach of the
user agreement on the Southwest.com website.
Whew!!!
Outtask denies all this of course, and claims that the the prevailing
law in this case should be US Copyright law, and that under copyright,
the small bits of information being scraped would not be subject to
copyright protection.
The bottom line on all this is that the law is unsettled, in the US,
and everywhere else in the world that I am aware of.
So, screen-scrape at your own risk.
It may turn out to be an acceptable practice over time. Or, it may
turn out to be an enormous legal liability for those who undertake it.
And even if the law is, eventually, on the side of the
screen-scrapers, the practice can still lead to expensive litigation
in both local jurisdictions, as well as across national borders.
This last point is important. A computer in India, scraping another
site in India, whose server is in New York, may find itself in a very
complex, international legal entanglement:
http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan008152.pdf
Cyberlaws in Information Age
...One of the critical issues in the cyber era is a matter of
jurisdiction, which is the authority of a court to hear a case and
resolve a dispute within a sovereign territory. Because the legal
environment of e-commerce has no geographical boundaries, it
establishes immediate longdistance communications with any one who can
access the web site. Usually an on line emerchant has no way of
knowing exactly where the information on its site is being accessed.
Hence, the jurisdiction issue is of primary importance in cyberspace.
Acknowledging or otherwise identifying the source of any scraped
information does not offer any legal protection that I am aware of.
Either you have permission, or you don't. And if you don't, then
proceed with caution!
I trust this is the sort of information you were seeking. But if
there's anything else I can do for you on this, don't hesitate to let
me know. Just post a Request for Clarification, and I'm at your
service.
Cheers,
pafalafa-ga
search strategy -- Answer based on my knowledge of the topic, as well
as bookmarked sites for intellectual property case law. |
