Mining of Data From Brokerage Listings Is Held Not to Infringe Copyright
July 6, 2004
Larry Zanger - Chicago
In a decision that will interest online brokers, auction sites, and listing services, a federal court in Florida recently allowed a business to extract data from a competitor’s Web site. Nautical Solutions Marketing, Inc., v. Boats.com, M.D. Fla, No. 8:02-CV-760-T-23TGW, April 1, 2004).
The case arose when Nautical Solutions Marketing, Inc. (NSM) created a Web site called Yachtbroker.com containing listings of yachts for sale. In the course of creating Yachtbroker.com, NSM used an Internet “spider” that visited targeted public Web sites – including Yachtworld.com, a competing site owned by Boats.com – and extracted information from those Web sites. The extracted information included the manufacturer, model, length, year, price, location and URL of the Web page containing the yacht listing. Those data were indexed in a searchable database accessible to users of Yachtbroker.com. NSM also momentarily copied the Web page containing the yacht listing, collected the specified facts, entered those facts in the NSM database, and discarded the original Web page – all accomplished almost instantaneously.
The NSM Web site services included another aspect that operated as follows: with the permission of a yacht broker that owned a yacht listed on another Web site, NSM would move, delete or modify the yacht broker’s listing. In that regard, NSM “copied and pasted” certain content, including pictures and descriptions, from yacht listings on other Web sites, including Yachtworld.com, and posted the content on the NSM Web site in a different format. The Web page format employed by NSM to display the copied content differed substantially from the Web page format used on the original Web site to display the original listing.
Boats.com owned and operated Yachtworld.com, one of the yacht listing Web sites from which NSM extracted information. Boats.com claimed that NSM’s extraction and copying of yacht listings infringed its copyright in its Web site and listings.
The court rejected Boats.com’s claims and ruled in favor of NSM. It decided that because NSM copied Yachtworld’s Web pages only momentarily and only to extract facts, it was a fair use and not an infringement of Yachtworld’s copyright. Perhaps more importantly, the court found that the material that NSM extracted and copied were merely facts that could not be protected under copyright law. Finally, because the pictures and descriptions that NSM copied from the Yachtworld.com listing were created by the individual yacht brokers, and not Yachworld.com, the court held that they did not belong to Boats.com. Accordingly, none of NSM’s copying was infringing.
This case is the latest of several recent decisions permitting the extraction of factual information from Web site databases. A comparable case of some note occurred in 2000, when eBay filed suit against Bidder’s Edge, a service that allowed individuals to search multiple auction sites, including eBay. A federal court in California granted an injunction that barred Bidder’s Edge from using its automated system to mine data from eBay’s site, not on a copyright infringement theory, but because eBay showed evidence that the Bidder’s Edge system could slow the response time of eBay’s site. The parties settled the suit during the following year, with Bidder’s Edge ceasing its searches on eBay.
The Bidder’s Edge case did dampen the use of datamining of competitors Web sites. In the NSM case, by contrast, NSM’s datamining did not appreciably impair the performance of Yachtworld.com
site – it was reported that the effect was comparable to one visitor using
an AOL dial-up account. It would appear that the law has been evolving to
allow the use of technology to extract factual data from the Web sites of
others.
For more information, e-mail Larry M. Zanger at
larry.zanger@hklaw.com or call toll free, 1-888-688-8500.