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LawGeek
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"LawGeek
Thoughts on Things By Jason Schultz
June 07, 2009
Facebook v. Power Ventures: Fair use, misuse, and the fight for access to user-generated data
Early last month, federal Judge Jeremy Fogel issued an order in the case of Facebook v. Power Ventures , a lawsuit over a third-party platform that allegedly attempts to "scrape" content for and from users on different social network sites into a single UI. Facebook sued Power, claiming violations of copyright, anti-circumvention regualtions, CAN-SPAM, and the Computer Fraud and Abuse Act. More on the case can be found here . In the ruling, Judge Fogel primarily addressed 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 v. Peak , 991 F.2d 511 (9th Cir. 1993) and Ticketmaster v. RMG , 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, 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. While there are many reasons to disagree with this analysis and with the MAI/RMG line of cases in general (see, e.g., Section 101 of the Copyright Act which defines a "copy" as a "material object" that is "fixed" such that it is "sufficiently permanent or stable "
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