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Data Scraping as a Cause of Action: Limiting Use of the CFAA and Trespass in Online Copying Cases
Kathleen C. Riley*
Note

  The full text of this Note may be found here.

29 Fordham Intell. Prop. Media &Ent. L.J. 245 (2019).

Note by Kathleen C. Riley

 

ABSTRACT

 

[I]

n recent years, online platforms have used claims such as the Computer Fraud and Abuse Act (“CFAA”) and trespass to curb data scraping, or copying of web content accomplished using robots or web crawlers. However, as the term “data scraping” implies, the content typically copied is data or information that is not protected by intellectual property law, and the means by which the copying occurs is not considered to be hacking. Trespass and the CFAA are both concerned with authorization, but in data scraping cases, these torts are used in such a way that implies that real property norms exist on the Internet, a misleading and harmful analogy.

 

To correct this imbalance, the CFAA must be interpreted in its native context, that of computers, computer networks, and the Internet, and given contextual meaning. Alternatively, the CFAA should be amended. Because data scraping is fundamentally copying, copyright offers the correct means for litigating data scraping cases. This Note additionally offers proposals for creating enforceable terms of service online and for strengthening copyright to make it applicable to user-based online platforms.

*J.D. Candidate, Fordham University School of Law, 2019; B.A., Oberlin College, 2010. Thank you to Mark Patterson, my advisor, as well as the others who I consulted while brainstorming and writing this note: Fordham Professors Janet Freilich, Olivier Sylvain, and Joel Reidenberg, as well as Mark Baker and Beth Bruns of Thomson Reuters. I am grateful to the dedicated staff of the Fordham IPLJ, and in particular to Senior Research & Writing Editor Sean Corrado, for their feedback and advice. I also thank Daniel C. Reich for his near-infinite patience and my family and friends for their constant support.