Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

The “selfie” is now so ubiquitous that the word is in the Oxford English Dictionary, you can use it in Scrabble and it has spawned a whole new lexicon. Selfies are no longer the preserve of teens and reality stars; you now have politicians, royalty and companies getting in on the act. Selfies can mean big business—indeed, it was recently announced that Kim Kardashian, the reality star and “queen of the selfie,” will publish a book of 352 of her favorite snaps next year at $19.95 a pop.But unfortunately for our simian friends, it seems that selfies are simply not monkey business.Monkey SelfieIn 2011, British wildlife photographer David J. Slater was in Indonesia taking photos of macaque monkeys. Some of the monkeys began playing with his digital camera and a female monkey managed to take a particularly excellent self-portrait, reproduced below.The photo was published in various magazines and on websites around the world. It eventually was added to Wikimedia Commons, a collection of images that are free for public use.Slater asked Wikimedia to remove the image or pay for its use; Wikimedia did neither. Last week it came to light that Wikimedia had denied a notice-and-takedown request regarding the photograph on the basis that there was no copyright in the monkey’s photo.__________________________________________________________________________________Wikimedia Foundation Transparency ReportA photographer left his camera unattended in a national park in <a href="https://en.wikipedia.org/wiki/North_Sulawesi" target="_blank" rel="noopener">North Sulawesi</a>, Indonesia. A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits. The pictures were featured in an online newspaper article and eventually posted to Commons. We received a takedown request from the photographer,claiming that he owned the copyright to the photographs. We didn’t agree, so we denied the request.__________________________________________________________________________________So, Is Wikimedia Correct?Unfortunately for all budding animal photographers out there (that is, photographers who are animals) the legal status of the monkey selfie would seem to be pretty clear-cut.These circumstances involve a UK photographer, a U.S. website and one striking Indonesian macaque. While the applicable law could be that of any of those jurisdictions, the macaque will be hard-pressed to find support in any of them.   <ul><li>Under the UK’s (one might say “discriminatory”) Copyright, Designs and Patents Act 1988 (CDPA), the copyright in an artistic work such as a photograph is owned by the person who creates it. And, under English law, “person” means human or corporate entity, but does not include animals.</li><li>The U.S. Copyright Act, on the other hand, only requires that there be an author—it does not specify that the author be human. Nevertheless, for practical purposes, the author would either need to be human or a corporate entity. Indeed, the U.S. Copyright Office has previously advised in Section 202.02(b) of the Compendium II of Copyright Office Practices that, for a work to be copyrightable, it must “owe its origin to a human being,” and that materials produced solely by nature, by plants or by animals do not count.</li><li>Indonesia provides no better protection for its monkey citizens, as its Copyright Act 2002 refers to persons.</li></ul>Of course, technically, Slater may be able to bring an infringement suit in any country in which the photograph is being used without authorization. We are not aware, however, of any countries that have extended copyright protection to works created by animals.What About Slater? So, if the law does not acknowledge the monkey as a copyright creator, can Slater be considered the copyright owner?Simply owning the camera that took the photo is not enough. Copyright law is in place to protect the creators of artistic works, not the owners of equipment. (Interestingly, this was not always the case. Under an earlier copyright law—the UK Copyright Act 1956—the author of a photograph was defined as the person who at the time the photograph was taken “owned the material on which it was taken.”)Slater reportedly argues that he owns the copyright in the photograph because he set up the photograph, even if the monkey pressed the button to take the image. He claims that the monkey is akin to a human assistant who helps to prepare a shot. Based on the facts that have been published to date, it would seem difficult to draw such a conclusion.Typically assistants are there to help the photographer achieve his or her creative vision. However, given that the snap in question appears to have been very much the key photo among hundreds of blurry and unusable images taken by the group of monkeys, it would seem difficult to demonstrate that anyone—human or monkey—“created” it. Rather one may argue that the photo was an entirely random and serendipitous event.Under U.S. law, if the monkey had merely snapped the photo on command—no different than, say, an automatic shutter—then Slater would have a compelling argument that all of the artistic expression in the photo was his, and that he was properly the author. But that was not the case.Slater might also argue that the monkey was his assistant, and that the monkey’s photo was actually a work for hire under U.S. copyright law, making Slater the author of the work. And while the U.S. work-for-hire doctrine does contemplate that a non-human (such as a corporation) could be an “author” (17 U.S.C. § 201(b)), it would require that, at a minimum, the monkey be Slater’s employee or that they otherwise have some written agreement in place, and, let’s face it, only a kangaroo court could reach such a conclusion here.Or perhaps Slater and the monkey are co-authors, which under U.S. law would allow each co-author the right to license the entire work, provided one co-author accounted to the other as to her proportionate share of any royalties. But if the monkey cannot be an author, surely she cannot be a co-author either. Plus, who would get the monkey’s share of the royalties? People for the Ethical Treatment of Animals? The World Wildlife Foundation?Slater could seek to draw a parallel with computer-generated works. The UK’s CDPA, for example, states that the author of a “computer-generated” work shall be the person who undertakes the arrangements necessary for its creation. A “computer-generated work” means a work generated by a computer in circumstances where there is no human author.Now, a digital camera could be classified as a computer, and here there is no “human author,” but would a court hold that Slater should be entitled to the copyright, particularly if Slater set the camera to a certain shutter speed, and adjusted for light conditions and so forth, before the monkeys ran off with the camera?Or would the court instead accept the counterargument that a monkey selfie is not a computer-generated work any more than a painting by an elephant is a paintbrush-generated work; it is an animal-generated work and copyright law doesn’t cater to those?It’s difficult to say. Slater may have more success if he can show that the version of the photograph on Wikimedia is not the actual selfie taken by the monkey, but has been filtered, cropped or otherwise edited; as a separate copyright may attach to the edited picture, at least under the copyright laws of some countries.ConclusionSo, going back to our talented amateur monkey photographer, it is reasonably clear she can’t create a copyrighted work, and also unlikely that Slater would be considered the copyright owner in any event. But what about rights of publicity or image rights? Or database rights attaching to the suite of photos? Or data protection and privacy rights? Could these legal theories prove more fruitful for Slater and his “assistant”?Or perhaps the fact that our simian pals are not able to be copyright authors should be viewed as a blessing, rather than a curse. After all, if a monkey can’t create a copyright, presumably a monkey can’t infringe one either . . .

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Monkey in the Middle of Selfie Copyright Dispute

Monkey in the Middle of Selfie Copyright Dispute

The “selfie” is now so ubiquitous that the word is in the Oxford English Dictionary, you can use it in Scrabble and it has spawned a whole new lexicon. Selfies 

Socially Aware is pleased to announce that Van Rye Publishing has published the article “Ownership of Business-Related Social Media Accounts” by Morrison & Foerster partner <a href="http://www.mofo.com/people/aaron-rubin" target="_self" rel="noopener">Aaron Rubin</a> and associate Anelia Delcheva in the book Employers and the Law: 2013-14 Anthology of Best Articles.  The book is a collection of articles covering ongoing and emerging legal responsibilities stemming from the relationship between employers and employees. Authored by leading employment law experts, the articles are relevant to, among others, business owners, managers, and human resource professionals—and to their legal advisors.You can find Employers and the Law: 2013-14 Anthology of Best Articles in paperback and e-book format at <a href="http://www.amazon.com/Employers-Law-2013-14-Anthology-Articles/dp/0990367134/ref=sr_1_2?s=books&ie=UTF8&qid=1404689499&sr=1-2&keywords=employer+law" target="_blank" rel="noopener">Amazon.com</a>.The book is also available in e-book format at most major e-book retailers.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Ownership of Business-Related Social Media Accounts

Socially Aware is pleased to announce that Van Rye Publishing has published the article “Ownership of Business-Related Social Media Accounts” by Morrison & Foer

Ownership of Business-Related Social Media Accounts

Don’t know your ‘like’ from your ‘hashtag’? Got a LinkedIn account, but not sure how to get the most out of it? Use Twitter in your personal life, but not sure how it works in a business context?It is well established that effective networking is crucial to a woman’s career. It is also clear that women dominate the majority of social media platforms. Indeed, Sheryl Sandberg says that Facebook statistics show that “The social world is led by women”. But many of us are still not bringing the two together and exploring the value of business networking via social media.At its heart, business is about relationships, and relationships are built on conversations. Conversations first became virtual via letters, then telephones and faxes, then emails and now social media. Can you imagine telling an important contact that you don’t have email? Can you imagine their reaction? Many will now look at you in the same way if you don’t have a LinkedIn profile!Please join us for a session where we will provide tips to help you (i) identify which social media platforms are most appropriate for your role, (ii) build and optimize your profiles and (ii) effectively network via social media.Speakers: We are delighted to be joined by Linda Cheung, a recognised thought leader on social media for business and the co-founder of CubeSocial, a leading social media marketing and CRM company.Sue McLean, chair of MoFo Women London and the Head of MoFo’s Social Media Practice in Europe will host the event and provide some top tips for avoiding the legal pitfalls associated with social media.Date & Time: Wednesday,September 10, 2014 6:30 p.m. BSTFor more information and registration information, click here.

MoFo Women London Presents – Networking in the Digital Age: Social media is just another way to talk

Don’t know your ‘like’ from your ‘hashtag’? Got a LinkedIn account, but not sure how to get the most out of it? Use Twitter in your personal life, but not sure 

MoFo Women London Presents – Networking in the Digital Age: Social media is just another way to talk

As the quality of visual recognition software continues to improve, privacy concerns have grown concomitantly. Because we now document our lives with so many pictures posted to social media—<a href="http://www.businessinsider.com/facebook-350-million-photos-each-day-2013-9" target="_blank" rel="noopener">Facebook hosts over 250 billion photos, with 350 million new photos added every day</a>—photographs are becoming hugely important to the big data movement. Indeed, some say Facebook stores over <a href="http://geekologie.com/2011/09/facebook-hosts-4-of-all-photos-ever-take.php" target="_blank" rel="noopener">4 percent of all the pictures ever taken in history</a>. What truths may lurk behind all those images—and who wants to know?Cutting-edge visual recognition software programs now make it possible not only to identify a person in a photo on Facebook or elsewhere, but also to determine what that person is doing in the photo.There’s already image recognition software, used by the fashion industry, that lets a shopper take a <a href="http://www.theguardian.com/business/2014/apr/20/fashion-retailers-image-recognition-apps-smartphones" target="_blank" rel="noopener">picture on his or her smartphone of a piece of clothing</a> and then match that piece by color, pattern, and shape to the offerings of 170 retailers that sell something similar. That’s a benign use of this technology. But more ominous applications are already emerging.My sense is that this concern is helping to fuel <a href="http://bits.blogs.nytimes.com/2014/01/27/why-i-use-snapchat-its-fast-ugly-and-ephemeral/" target="_blank" rel="noopener">the growth of ephemeral social media sites such as Snapchat</a>, where—<a href="http://www.ftc.gov/news-events/press-releases/2014/05/snapchat-settles-ftc-charges-promises-disappearing-messages-were" target="_blank" rel="noopener">at least in theory</a>—photos don’t sit there in perpetuity to be exploited by data miners; they last all of 10 seconds.After all, imagine all your online photos being processed into a data profile by advertisers or law enforcement, showing where you live, where you’ve been, with whom you hang out and what activities you’ve participated in. If a single picture is worth a thousand words, what are 250 billion photos worth?

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Picture This: Online Photos and Big Data

As the quality of visual recognition software continues to improve, privacy concerns have grown concomitantly. Because we now document our lives with so many pi

Picture This: Online Photos and Big Data

“Web scraping” or “web harvesting”—the practice of extracting large amounts of data from publicly available websites using automated “bots” or “spiders”—accounted for 18% of site visitors and 23% of all Internet traffic in 2013. Websites targeted by scrapers may incur damages resulting from, among other things, increased bandwidth usage, network crashes, the need to employ anti-spam and filtering technology, user complaints, reputational damage and costs of mitigation that may be incurred when scrapers spam users, or worse, steal their personal data.Though sometimes difficult to combat, scraping is quite easy to perform. A simple online search will return a large number of scraping programs, both <a href="http://scraping.pro/software-for-web-scraping/">proprietary</a> and <a href="http://scrapy.org/">open source</a>, as well as <a href="http://blog.hartleybrody.com/web-scraping/">D.I.Y. tutorials</a>. Of course, scraping can be beneficial in some cases. Companies with limited resources may use scraping to access large amounts of data, spurring innovation and allowing such companies to identify and fill areas of consumer demand. For example, <a href="https://www.mint.com/">Mint.com</a> reportedly used screen scraping to aggregate information from bank websites, which allowed users to track their spending and finances. Unfortunately, not all scrapers use their powers for good. In one case on which we <a href="https://www.sociallyawareblog.com/2014/04/10/jerked-around-did-the-ftcs-jerk-com-complaint-just-turn-api-terms-into-federal-law/">previously reported</a>, the operators of the website <a href="http://jerk.com/">Jerk.com</a> allegedly scraped personal information from Facebook to create profiles labeling people “Jerk” or “not a Jerk.” According to the <a href="http://www.ftc.gov/news-events/press-releases/2014/04/ftc-charges-operators-jerkcom-website-deceiving-consumers">Federal Trade Commission</a> (FTC), over 73 million victims, including children, were falsely told they could revise their profiles by paying $30 to the website.Website operators have asserted various claims against scrapers, including <a href="http://www.internetlibrary.com/pdf/Ticketmaster-Tickets.com-SJ-Motion.pdf">copyright claims</a>, <a href="http://law.justia.com/cases/federal/district-courts/FSupp2/100/1058/2478126/">trespass to chattels claims</a> and <a href="http://law.justia.com/cases/federal/appellate-courts/F3/356/393/539823/">contract claims</a> based on allegations that scrapers violated the websites’ terms of use. This article, however, focuses on another tool that website operators have used to combat scraping: the federal <a href="http://www.law.cornell.edu/uscode/text/18/1030">Computer Fraud and Abuse Act</a> (CFAA).The CFAA imposes liability on “whoever…<a href="http://www.law.cornell.edu/uscode/text/18/1030">intentionally accesses a computer without authorization or exceeds authorized access</a>, and thereby obtains…information from any protected computer…” While the CFAA is primarily a criminal statute, it also provides for a civil remedy where a plaintiff suffers more than $5,000 in aggregate losses during any one-year period arising from a violation of the CFAA. For large website operators asserting CFAA claims against scrapers, the $5000 damages requirement has not proven to be a difficult obstacle to overcome. For example, in CollegeSource, Inc. v. AcademyOne, Inc., the District Court for the Eastern District of Pennsylvania found that the plaintiff’s cost of initiating an internal investigation of the defendant’s website, hiring a computer expert to analyze the scope of the defendant’s actions and implementing increased security measures were well in excess of $5,000. Similarly, in <a href="https://www.eff.org/files/filenode/facebook_power_order.pdf">Facebook, Inc. v. Power Ventures, Inc.</a>, the District Court for the Northern District of California found that the plaintiff’s expenditures made in response to defendant’s specific acts, which included three to four days of engineering time, $75,000 in outside counsel costs and the costs of responding to a minimum of 60,000 instances of spamming by defendant, were well in excess of the statutory threshold. The more difficult question is whether scraping violates the CFAA at all.The CFAA was originally intended as an anti-hacking statute and its application to scraping—which, after all, usually involves accessing publicly-available data on a publicly-available website—is not always a foregone conclusion. Does a scraper access a website “without authorization” or “exceed authorized access” when it harvests publicly available data on a publicly available website? Plaintiffs often argue that scrapers act without authorization because the websites’ online terms of use prohibit scraping and/or prohibit the scrapers’ use of the data that they harvest. As discussed below, such claims have met with success in some cases, but courts have been less willing to find a CFAA violation in other scraping cases.In <a href="https://h2o.law.harvard.edu/collages/41836">Cvent, Inc. v. Eventbrite</a>, Cvent sued Eventbrite for scraping Cvent’s website to obtain venue information and using the information in Eventbrite’s “Venue Directory.” Cvent claimed that this was a violation of the CFAA because Cvent’s terms of use specifically stated that such activities were unauthorized. The District Court for the Eastern District of Virginia held that Eventbrite’s actions did not constitute “hacking” in violation of the CFAA because the information was publicly available; Cvent’s website did not require any login, password or other individualized grant of access; and Cvent’s terms of use were difficult to locate. Therefore, the court granted Eventbrite’s motion to dismiss, concluding that Eventbrite was authorized to access the information on Cvent’s website, and that the mere allegation that Eventbrite used the information inappropriately was not grounds for relief under the CFAA.Power Ventures, the defendant in Facebook, Inc. v. Power Ventures, Inc., operated a social media account integration site. As part of a promotion to gain new members, Power Ventures provided users with a list of their Facebook friends, which Power Ventures obtained through scraping the Facebook website, and asked users to select friends to invite to use the Power Ventures site. Facebook notified Power Ventures that its access was unauthorized and blocked Power Ventures’ IP addresses. However, Power Ventures’ scraping technology was designed to circumvent such technological measures and the scraping continued. The District Court for the Northern District of California held that Power Ventures’ accessing of Facebook was without authorization and violated the CFAA and accordingly, granted summary judgment to Facebook on the CFAA claim.CollegeSource, the plaintiff in CollegeSource, Inc. v. AcademyOne, Inc., maintained an archive of college course catalogs in PDF format and a hyperlink service called CataLink, both of which it made available to paying subscribers. AcademyOne, a CollegeSource subscriber, hired a third party to download college catalogs directly from college websites in order to compile a course description database. However, the third party instead copied some of the PDF documents from CollegeSource through CataLink. AcademyOne removed the CollegeSource documents from its system after receiving a cease and desist letter from CollegeSource, but CollegeSource nonetheless proceeded to bring a number of claims against AcademyOne, including CFAA claims based on the argument that AcademyOne accessed the documents without authorization and exceeded authorized access. The court held, however, that AcademyOne did not access the documents without authorization because those documents were available to the general public. CollegeSource’s argument that AcademyOne exceeded authorized access was based on AcademyOne’s alleged violation of CollegeSource’s terms of use. The Court acknowledged that accessing a website in violation of the applicable terms of use has been held to support a CFAA claim in some cases, but was unconvinced by CollegeSource’s argument here because CollegeSource’s subscription agreement did not cover CataLink. Accordingly, the court granted summary judgment to AcademyOne on the CFAA claims. In <a href="http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf">Craigslist Inc. v. 3Taps Inc.</a>, 3Taps allegedly scraped Craigslist’s website and republished Craigslist ads on its own site, craiggers.com.  In response, Craigslist sent 3Taps a cease and desist letter revoking 3Taps’s authorization to access Craigslist’s website for any purpose, and reconfigured the website to block 3Taps.  When 3Taps allegedly continued its scraping activities by using different IP addresses and proxy servers to conceal its identity, Craigslist brought suit under the CFAA.  Even though Craigslist’s website was publicly available, the District Court for the Northern District of California declined to grant 3Taps’ motion to dismiss the CFAA claim.  According to the court, while Craigslist may have granted the world permission to access its website, it retained the power to revoke that permission on a case-by-case basis, a power it exercised when it sent the cease and desist letter and blocked 3Taps’s IP addresses. Therefore, 3Taps’ continued access was without authorization. The court also rejected 3Taps’ attempt to invoke the Ninth Circuit’s decision in United States v. Nosal.  In Nosal, the Ninth Circuit had held that an employee’s use of information in violation of an employer’s policies did not constitute a CFAA violation where the employee’s initial access to the employer’s computer system was authorized.  The court in 3Tap’s concluded, however, that the “calculus is different where a user is altogether banned from accessing a website,” as was the case with 3Taps.Fidlar, the plaintiff in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1565&context=historical">Fidlar Technologies v. LPS Real Estate Data Solutions, Inc.</a>, provides its Laredo program to governmental agencies, such as county clerks’ offices, which use Laredo to make public records available for viewing over the Internet. Laredo prevents users from downloading or electronically capturing the documents they view. Users who want a copy of a public record must pay the county a print fee. LPS, a real estate analytics company, contracted with many counties to access their public records using Laredo, but used a scraping program to capture documents electronically without paying any fees. Fidlar sued LPS for violating section 1030(a)(5)(A) of the CFAA, which imposes liability on anyone who “…knowingly causes the transmission of a program, code, or command, and as a result…<a href="http://www.law.cornell.edu/uscode/text/18/1030">intentionally causes damage without authorization, to a protected computer</a>.” The District Court for the Central District of Illinois denied LPS’s motion to dismiss the CFAA claim, holding that Fidlar’s complaint properly alleged that LPS undertook intentional actions that, among other elements of damage, compromised the integrity of Laredo.In light of the cases discussed above, it seems that plaintiffs are likely to have more success asserting CFAA claims against scrapers where they clearly and unambiguously revoke authorization to access their websites and take affirmative steps to block the scrapers, as in 3Taps and Power Ventures. In contrast, when the scraper ceases scraping after access is revoked and takes remedial action, as in CollegeSource, courts may be less willing to impose CFAA liability. As seen in Cvent, a mere terms of use violation, particularly where the scraper may not have actual notice of the terms of use, may not support a CFAA claim. Whether the scraper is simply using software to collect publicly available information more efficiently or to do something else—such as to avoid paying fees for the information, as seen in Fidlar—may also be relevant. In any event, in an era when data is expensive to collect, valuable to have and cheap to take, the CFAA, when properly used, remains a viable tool to combat scrapers.

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Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping

Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping

“Web scraping” or “web harvesting”—the practice of extracting large amounts of data from publicly available websites using automated “bots” or “spiders”—account

On 5 June 2014 the European Court of Justice (CJEU) published its decision in the “Meltwater” Case C-360/13, (Public Relations Consultations Association Ltd (PRCA) v Newspaper Licensing Agency Ltd (NLA) and Others). In a ruling that some have hailed as a victory for common sense, the CJEU declared that browsing freely accessible copyrighted material on the Internet does not constitute a copyright infringement, and on-screen and cached copies will constitute temporary copies for the purposes of Article 5(1) of the InfoSoc Directive ( EC Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (“InfoSoc Directive”) was introduced in 2001 to meet the challenge of the Internet, e-commerce, and digital technology).BackgroundThe case concerns the PRCA, which is an association of public relations professionals, and the NLA, which is a body set up by UK newspaper publishers for the purpose of collective licensing of newspaper content. The PRCA’s members use a media monitoring service offered by Meltwater which involves Meltwater sending emails to users containing headlines of articles which are then linked to the rights holder’s website. Users can also access search results on Meltwater’s website. (It should be noted that if a website has a paywall, the user will have to pay for access to the material on the same terms as everyone else – the link does not enable the user to avoid the paywall.)The NLA argued that Meltwater’s customers needed various licences to access the rights holder’s material, including: (i) a licence to use the temporary on-screen and cached copies of search results created when the user viewed search results on Meltwater’s website and (ii) a licence to use the temporary on-screen and cached copies of an article created when the user clicked on a link and viewed an article on the rights holder’s website. The PRCA claimed that these temporary copies fell within the copyright exemption detailed in Article 5(1) (as transposed into UK law by Section 28A of the Copyright, Designs and Patents Act 1988).Article 5(1) provides an exemption from copyright infringement based on the following cumulative conditions where:<ul><li>Copying is temporary.</li><li>Copying is transient or incidental.</li><li>Copying is an integral and essential part of a technological process (i.e., (1) the acts of reproduction are carried out entirely in the context of the implementation of a technological process and (2) the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts).</li><li>The sole purpose of copying is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work.</li><li>Copying has no independent economic significance.</li></ul>Both the UK High Court and UK Court of Appeal agreed that PRCA members needed a licence from the NLA in order to receive the Meltwater service. The PRCA appealed to the UK Supreme Court.UK Supreme CourtThe UK Supreme Court held that both on-screen and cached copies satisfy the temporary copies exemption detailed in Article 5(1). However, given the potential transnational effect, the UK Supreme Court decided to stay the proceedings and request a preliminary ruling from the CJEU as to whether Internet browsing falls within the exemption of Article 5(1).European Court of JusticeThe CJEU has agreed with the UK Supreme Court that Internet browsing falls within the Article 5(1) exemption, on the following grounds:<ul><li>Temporary – On-screen copies are temporary as they are deleted when the user moves away from a given website, and cached copies are temporary because they are automatically replaced by other content after a period of time.</li><li>Transient and Incidental – On-screen copies only exist to the extent necessary to view the website and are therefore transient. Although cached copies are not deleted when the user stops viewing the website, they are incidental because they do not have a purpose independent of the technological process.</li><li>Integral and Essential – On-screen copies and cached copies are an integral part of the technological process because they are created and deleted by the technological process used for viewing websites and they are essential because the viewing of websites would not function correctly and efficiently without them.</li></ul>In order to rely on the Section 5(1) exemption, the copies must also satisfy Article 5(5) of the InfoSoc Directive (i.e., the Article 5(1) exemption only applies in certain special cases which do not conflict with a “normal exploitation of the work” and “do not unreasonably prejudice the legitimate interests of the rights holder”).On Article 5(5), the CJEU held that internet browsing should be considered a ‘special case’, and that the copies did not unreasonably prejudice the “legitimate interests” of the rights holder (on the basis that Article 3(1) of the InfoSoc Directive requires a website publisher to obtain the consent of rights holders before publishing any content). The CJEU also held that the creation of copies in the course of viewing a website constituted a ‘normal exploitation of the work’.The case will now be referred back to the UK Supreme Court for confirmation of its final decision based on the CJEU’s preliminary ruling.Browsing ImplicationsWith this decision, the millions of users who browse the Internet across Europe every day can continue as before, without the need for specific “browsing licences”. However, if users print, download, store or email any copyrighted material this will fall outside the exemption. So, where rights holders do not consent to users’ printing, downloading, storing or emailing any copyrighted material that is otherwise freely available for browsing, they should continue to ensure that these prohibitions are explicit in website terms and conditions.Whilst individual users may now be seen as “innocent browsers” and exempt from infringement, rights holders retain meaningful remedies. The CJEU relied on the fact that Article 5(5) requires that the rights holder’s permission is obtained before a publisher can post its content on the Internet. Accordingly, it will remain very important for rights holders to monitor the posting of any copyrighted materials on the Internet and take steps to remove any content that is posted without permission.Beyond Browsing; StreamingAlthough the CJEU did not refer to streaming in its ruling, there has been some subsequent speculation that this decision could, by analogy, be extended beyond browsing to web streaming. In turn, this has raised concerns that streaming of pirated content in Europe may increase with browsers freed from the threat of possible sanctions for copyright infringement.These concerns may be supported by the facts that:<ul><li>In the UK Supreme Court rulings Lord Sumption stated “it has never been an infringement … for a person merely to view or read an infringing article in physical form…All that Article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form”; and</li><li>The proposed Ofcom anti-piracy code (yet to be implemented in the UK) is targeted at Internet users who are suspected of illegally downloading copyrighted material. The draft code makes no reference to ‘streaming’.</li></ul>It may be that enjoyment of infringing streamed content will be found to fall with the Article 5(1) exemption. However, we would suggest that caution is more appropriate here than panic. Streaming involves a variety of different technologies and processes, and the copyright implications of each will need to be considered on its merits. Furthermore, the InfoSoc Directive explicitly contemplated browsing as being an act for which the Article 5(1) exemption was designed; and we should not be surprised that the exemption has been successfully applied. By contrast, and as possible comfort to rights holders, the Recitals to the InfoSoc Directive also explicitly contemplated that “new uses of copyright works” may require more limited exemptions, and therefore greater scrutiny.So, in line with our somewhat arbitrary scoring system in this series of Alerts, we are calling this a shared victory for both copyright holders and the Internet. Browsing continues as a functional freedom and rights holders can still seek meaningful remedy for copyright infringement.

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Copyright: Europe Explores its Boundaries Part 3: “Meltwater” – EU rules that browsing does not need a licence – a victory for common sense (or for pirates)?

Copyright: Europe Explores its Boundaries Part 3: “Meltwater” – EU rules that browsing does not need a licence – a victory for common sense (or for pirates)?

On 5 June 2014 the European Court of Justice (CJEU) published its decision in the “Meltwater” Case C-360/13, (Public Relations Consultations Association Ltd (PR

In November 2012, we wrote an Alert about the European Commission’s Communication on Cloud Computing intended, it said, to “… unleash the potential of cloud computing in Europe”.  Sceptics were doubtful that the cloud industry needed much help from European regulators to thrive.Twenty months later, the Commission has begun to deliver on its key actions in the Communication with the publication of its Cloud Service Level Agreement Standardisation Guidelines.How helpful are these Standardisation Guidelines to the cloud sector at this point in its development? The recently-issued Cloud Service Level Agreement Standardisation Guidelines have their origin back in November 2012.  At that time, the European Commission issued a Communication setting out a road map for the future growth of cloud computing in Europe.In the 2012 Communication, the Commission set out a number of key actions, including to cut through the jungle of standards and to promote safe and fair cloud contracts.  The Commission believes that the development of model terms for cloud computing – and, specifically, service level agreements in the cloud sector – is one of the most important issues affecting the future growth of the cloud industry in Europe, and that standardising the approach to cloud services will enable buyers of cloud computing services to make fair comparisons between different providers’ offerings.The GuidelinesThe guidelines are intended to help business-to-business users of cloud solutions to ensure that key elements are included in plain language in contracts they make with cloud providers. The recommendations are more directed toward the cloud industry than toward user of cloud computing. They seek to have the cloud industry standardise aspects of SLA offerings that will improve the overall clarity of the sector as a whole and improve the understanding of cloud SLAs among the buyer market. In particular, the aim of the guidelines is to highlight and provide information on the concepts usually covered by SLAs and indicate what information can be obtained from any existing certification schemes.At one level, the Standardisation Guidelines will be useful for business because they provide a standardised vocabulary and terminology by which the metrics that underpin cloud services are described. The guidelines set out a series of service level objectives covering:<ul><li>Performance: in terms of availability and service provisioning; response time; capacity and capability; support hours; support responsiveness; and reversibility and lock-in;</li><li>Security: covering service reliability; authentication and authorisation; cryptography; security incident management and reporting; incident monitoring; audit rights; and vulnerability management;</li><li>Data Management: including classification of data; data mirroring; and response to data portability requirements; and</li><li>Personal Data Protection: including codes of conduct on data privacy compliance; data minimization; use, retention and disclosure limitation, transparency; accountability; geographic limitations; and intervenability.</li></ul>If a business is looking to understand and implement the key objectives that are typically required from a relationship with a cloud services provider, the standardisation guidelines provide an ideal starting point.Cloud computing has evolved in a relatively un-regulated way. Obviously, cloud offerings need to be fitted within existing regulatory frameworks, although these are typically pre-existing and not directly targeted at the cloud sector itself.  The Commission’s 2012 Communication – and now the next step which the standardisation guidelines represent – are a move toward creating a framework that is specific to cloud computing. While the guidelines do not indicate the level at which specific metrics should be measured, they do at least provide a starting point for determining what scope and attributes of a cloud offering ought to be covered by measured metrics within a service level framework.Drawbacks and LimitationsThe open question is whether the cloud industry will pay attention to these non-mandatory guidelines, or whether the guidelines represent an attempt to set a baseline when the industry itself is already much further advanced than the baseline in the development of established approaches and has no interest or relevance to the guidelines.There are, however, a number of shortfalls with the guidelines.Firstly, the guidelines are just that: guidelines. There is no mandatory element, and any adoption or use depends entirely on the voluntary adoption by industry players. It is by no means clear the extent to which the leading cloud providers will want to amend their existing cloud offerings to take into account these guidelines.Secondly, the guidelines are only recommendations from the European Union. As the EU itself is quick to recognise, the initiative of which the guidelines are a part will only have a deeper impact if standardisation is done at an international level across all the key jurisdictions – and this really means by international standards such as ISO/IEC 19086. To this end, the C-SIG is also working with the ISO Cloud Computing Working Group to try to formulate a broader European position on SLA standardisation. These guidelines could be seen as no more than an in-feed to ISO’s effort to establish international standards for SLAs on cloud computing.Thirdly, the guidelines stop short of clear thresholds. So, for example, the guidelines describe an approach to defining availability/uptime – but there is no stated thresholds as to what level of availability ought to be good, bad or indifferent in the cloud market. Also, the key variable in measuring uptime is the inclusion or exclusion of maintenance, especially scheduled maintenance; but the guidelines merely observe this issue – there’s no recommended or mandated position as to whether maintenance should be in or out of the availability metric.What Happens Now?For the guidelines to become successful, they need to be adopted by the international community. At one level, the International Standards Organization could get behind these guidelines and move rapidly toward creating a series of cloud metrics.Adoption more broadly will depend either on the guidelines imposed “top-down” by the ISO as a standard that becomes broadly accepted in the market; or broad adoption could occur “bottom-up” if the key cloud providers move to embed these guidelines into their international cloud offerings. Or, of course, the ideal answer would be a combination of both top-down and bottom-up. But much depends on the appetite of the cloud industry to adopt and apply these guidelines – without industry buy-in, the guidelines may have little practical effect.

Autodesk

HM Revenue and Customs

Home Office, Department for Communities and Local Government, Department of Health