Webbots, Spiders, and Screen Scrapers - Michael Schrenk [120]
Amount of material used
Purpose for which the material is used
Market effect of the new work upon the original
Copyrighted material commonly falls under fair use if a limited amount of the material is used for scholastic or archival purposes. Fair use also protects the right to use selections of copyrighted material for parody, in short quotations, or in reviews. Generally speaking, you can quote a small amount of copyrighted material if you include a reference to the original source. However, you may become a target for a lawsuit if you profit from selling shirts featuring a catchphrase from a movie, even though you are only quoting a small part of a larger work, as it will likely interfere with the market for legitimate T-shirts.
The US Copyright Office says the following regarding fair use:
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.[87]
As you may guess, fair use exclusions are often abused and frequently litigated. A famous case surrounding fair use was Kelly v. Arriba Soft.[88] In this case, Leslie A. Kelly conducted an online business of licensing copyrighted images. The Arriba Soft Corporation, in contrast, created an image-management program that used webbots and spiders to search the Internet for new images to add to its library. Arriba Soft failed to identify the sources of the images it found and gave the general impression that the images it found were available under fair use statutes. While Kelly eventually won her case against Arriba Soft, it took five years of charges, countercharges, rulings, and appeals. Much of the confusion in settling the suit was caused by applying pre-Internet laws to determine what constituted fair use of intellectual property published online.
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[82] US Copyright Office, "Copyright Office Basics," July 2006 (http://www.copyright.gov/circs/circ1.html).
[83] US Copyright Office, "Copyright Registration for Online Works (Circular 66)," July 2006 (http://www.copyright.gov/circs/circ66.html).
[84] US Copyright Office, "Fair Use," July 2006 (http://www.copyright.gov/fls/fl102.html).
[85] Consult your attorney for clarification on your legal rights to collect specific information.
[86] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 1991.
[87] US Copyright Office, "Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)," July 12, 2006 (http://www.copyright.gov/help/faq/faq-fairuse.html#howmuch).
[88] If you Google Kelly v. Arriba, you'll find a wealth of commentary and court rulings for this saga.
Trespass to Chattels
In addition to copyright, the other main concept that you should be aware of is trespass to chattels. Unlike traditional trespass, which refers to unauthorized use of real property (land or real estate), trespass to chattels prevents or impairs an owner's use of or access to personal property. The trespass-to-chattels laws were written before the invention of the Internet, but in certain instances, they still protect access to personal property. Consider the following examples of trespass to chattels:
Blocking access to someone's boat with a floating swim platform
Preventing the use of a fax machine by continually spamming it with nuisance or junk faxes
Erecting a building that blocks someone's ocean view
From your perspective as a webbot or spider developer, violation of trespass to chattels may include:
Consuming so much bandwidth from a target server that you affect the website's performance or other people's use of the website
Increasing network traffic on a website to the point that the owner is forced to add infrastructure to meet traffic needs
Sending excessive quantities of email as to diminish the utility of email