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Many e-commerce business models include Web crawlers, spiders or bots. The legal rights involve the provisions and enforceability of terms-of-service agreements posted at Web sites regarding Web crawlers, spiders and bots; the evolving law of trespass to Web sites; and copyright law developments, including the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). Two cases within the past year illustrate how crawlers can be used to create new, transformative products and services — and how Web crawlers may be prohibited as a trespass to private property, especially where the amount of spidering consumes a significant amount of the Web sites’ resources and capacity. Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (C.D. Cal. Dec. 1999) illustrates how search engines may be integrated into e-commerce applications as a matter of fair use under the federal copyright laws. The district court in Kelly granted defendant’s motion for partial summary judgment in this copyright infringement action based on its fair use and in connection with alleged violations of the DMCA. The defendant operated a “visual search engine” on the Internet. The search engine retrieved images collected by the defendant’s crawler program, which were briefly stored in full on the defendant’s server until a reduced “thumbnail” picture could be made. The thumbnail pictures were then indexed in the defendant’s database, and the original image was deleted from the defendant’s server. In this way, the defendant’s Web site produced a list of reduced “thumbnail” pictures relating to a user’s query. By clicking on a thumbnail, the user could view the “image attributes” window displaying the full-size version of the image, a description of its dimensions, and an address for the Web site where it originated. By clicking on the address, the user could then link to the originating Web site for the image. The defendant did not dispute that it reproduced plaintiff’s images in thumbnail form without authorization, but asserted a fair use affirmative defense. Bearing the burden of proof, the defendant first argued that the images were not exploited in any particular way, and were collected in an indiscriminate manner using the Web crawler to obtain large numbers of images from numerous sources without seeking authorization. Considering the first factor under a fair use analysis, the court looked to the purpose and character of the use, and determined the use to be largely transformative. In reaching this conclusion, the judge in Kellyrelied on a U.S. Supreme Court ruling that “asks, � whether and to what extent the new work is transformative.�’Purpose and character’ also involve an assessment of whether “the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message” ( Kelly, 77 F. Supp. 2d at 1118, citing Campbell v. Acuff-Rose Music, 510 U.S. 569, 579, 127 L. Ed. 2d 500, 114 S.Ct. 1164 (1994)). The transformative nature of the use is critical, because “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. However, the defendant also argued that there was no negative commercial impact because its search engine did not compete with the plaintiff’s Web sites and actually increased the number of users finding their way to the plaintiff’s Web sites. After discussing the possible adverse consequences of deep-linking and bypassing the front page of the Web sites, the court found that the plaintiff did not show any evidence of market harm or adverse impact, and determined that the defendant’s inherently transformative process provided Internet users with a better way to find images on the Internet. Thus, the court in the Kellymatter found the defendant’s unauthorized copying under these circumstances permissible under the fair use doctrine. The court also did not find any violation of the DMCA. No removal of any copyright management information was shown to exist. In this instance, the user was given the name of the Web site from which the defendant obtained the image, and warned the user that use restrictions and copyright limitations may apply to images retrieved by the search engine. Significantly, the court did not suggest that it was at all concerned that the defendant’s search engine may not have complied with the use restrictions and copyright limitations applicable to the site from which the thumbnails were indexed. THE EBAY CASE More recently, in eBay Inc. v. Bidder’s Edge Inc.(No. C-99-21200, 2000 U.S. Dist. LEXIS 7287 (N.D. Cal. May 24, 2000), the court did find the terms of use on eBay’s site to be relevant in its determination to prohibit Bidder’s Edge from continuing to spider eBay’s computer system without written authorization for the purpose of copying part of eBay’s auction database. Here eBay expressly prohibited in its user agreement the use of “any robot, spider, other automatic device, or manual process to monitor or copy our Web pages or the content contained herein without our prior written permission.” The evidence showed that Bidder’s Edge accessed eBay’s site by spidering 80,000 to 100,000 times a day. Under these circumstances, the court found Bidder’s Edge’s electronic signals were sufficiently tangible to support a trespass cause of action and that Bidder’s Edge was most likely liable for trespass to chattels by virtue of exceeding the scope of access permitted by eBay to its site. The law with respect to Web crawlers, spiders and bots is just beginning to take shape. Further legal developments in the evolution of the law regarding Web crawlers, spiders and bots are certain to be at center stage in the e-commerce legal arena in the upcoming years. J.T. Westermeier is a partner, Business and Technology Group in the Washington, D.C., office of Piper Marbury Rudnick & Wolfe, past president of the Computer Law Association and a member of the board of editors of this newsletter.

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