Intermediate Copying to Extract Information
Case and Court:
Facebook, Inc. v. Power Ventures, Inc. (N.D. Cal.)
Background:
This lawsuit involves Power.com, a third-party platform allegedly “scraping” content for and from users on different social network sites into a single user interface. Facebook sued Power, claiming violations of copyright, anti-circumvention regulations, CAN-SPAM, and the Computer Fraud and Abuse Act. More on the case can be found here.
Upon a motion to dismiss the case, Judge Fogel upheld the complaint, primarily addressing the copyright and circumvention claims and whether to dismiss any of the claims outright because they were based on invalid legal theories. He refused to do so based on two cases that have troubled many copyright and internet scholars: MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) and Ticketmaster LLC v. RMG Techs., Inc., 507 F. Supp. 2d 1096 (C.D. Cal. 2007).
Fogel’s reasoning, under these cases, is that any scraping of a webpage involves copying that webpage into a computer’s memory in order to extract the underlying information contained therein. Even though this “copying” is ephemeral and momentary, he held that it is enough to constitute a “copy” under Section 106 of the Copyright Act and therefore what we lawyers call a prima facie (or “on its face”) case of infringement. Since Facebook’s Terms of Service prohibit scraping (and thus, Facebook has not given any license to third parties or users to do so), the copying happens without permission. Continue Reading »