All your friends in just one place. Except for your Facebook friends.
And maybe that is a good thing because, according to the court's ruling in Facebook Inc. v. Power Ventures Inc., No. 08-5780 (N.D. Cal. May 11, 2009), Facebook users who give Power.com their username and password information are infringing Facebook's copyright in its profile pages.
There are a few other gems in this opinion as well.
Takeaways for online business attorneys: When it comes to protecting Web site content, the Copyright Act is a powerful ally. Also, terms of use statements can effectively frame what is and is not an authorized use of your site content, even against parties that did not read those terms.
Takeaways for Web users: Like they say on the playground, you can pick your friends, you can pick your data. But you can't pick your friend's data.
Power Ventures, the defendant, operates Power.com, a Web site that permits users to aggregate data about themselves that is spread out across various social media Web sites. Power.com and Facebook tried unsuccessfully to work a deal so it could access Facebook’s Web site. Lacking official permission to access Facebook's Web site, Power.com turned to Facebook users, obtaining from them their username and password for the limited prupose of gaining access to their profile data. Power.com, armed with username/password information necessary to access Facebook users' accounts, then employed a computer program to pull profile data out of the Facebook Web site.
Facebook sued for violations of the CAN-SPAM Act, the Copyright Act, the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act and related state claims. The court's ruling addressed the copyright-related claims and the trademark claim.
The court repeatedly referred to Power.com's conduct as "scraping," an ominous sign. Cf. eBay v. Bidder's Edge and Verio v. Register.com.
The court found that Power.com's scraper made an actionable "cache" copy of the user's profile page each time it accessed a Facebook profile page. It followed Ticketmaster LLC v. RMG Techs. Inc., 507 F. Supp.2d 1096 (C.D. Cal. 2007)("copies of webpages stored automatically in a computer's cache or random access memory (RAM) upon a viewing of the webpage fall within the Copyright Act's definition") on this point.
Next the court held that these cache copies were unauthorized. Support for this conclusion was drawn from the Facebook terms of use, which prohibits downloading, scraping, or distributing any part of the Facebook Web site. True, the user may download his or her own content; however, the terms of use state that the user may not use automated means to do so.
OK, so far the court has found that Power.com made unauthorized copies of the Facebook Web site. What about the fact that Facebook does not own the copyright in its users' profile data? Facebook surmounted this hurdle by arguing that the content of the Facebook page that surrounded the user's data is copyrightable and is owned by Facebook. According to Facebook, the Power.com scraper operated in a manner that required it to copy the entire Web page in order to extract the user's profile data.
Defendants correctly assert that Facebook does not have a copyright on user content, which ultimately is the information that Defendants’ software seeks to extract. However, if Defendants first have to make a copy of a user’s entire Facebook profile page in order to collect that user content, such action may violate Facebook’s proprietary rights. Accordingly, the motion to dismiss the claim for direct copyright infringement will be denied.
Note that the court is conditioning its ruling on the assertion that the Power Ventures scraper necessarily copied the entire Web page before it processed the page and extracted the profile data. That comports with my (limited) understanding of how a Web scraper works. But is it true? If it were true, couldn't an argument be made that this is a fair use of the page? I'll leave that for better lawyers. In any event, the issue wasn't raised in the court's opinion or by counsel as far as I could tell. The court wound up holding that Facebook had alleged a valid claim for direct copyright infringement against Power.com.
Finally, to return to the point where I started this post, the court also held that the complaint stated a valid claim for indirect copyright infringement as well. The court reasoned like this:
[T]he utilization of Power.com by Facebook users exceeds their access rights pursuant to the Terms of Use. ... Moreover, when a Facebook user directs Power.com to access the Facebook website, an unauthorized copy of the user's profile page is created. ... The creation of that unauthorized copy through the use of Defendants' software may constitute copyright infringement.
The court doesn't come out and say it, but I will: Power.com can only be indirectly infringing if Facebook users are directly infringing. Users aren't being sued here, so it's merely an academic point. Interesting nonetheless.
Along the way, the court declined to dismiss the DMCA and trademark infringement claims against Power.com as well.
It will also be interesting to see how the court rules on Facebook's Computer Fraud and Abuse Act claims (based on violations of the Facebook terms of use), assuming the case gets that far.
Update: Venkat @VBalasubramani was on this one over a week ago making pretty much the same points.
Two comments.
1. I don't think this order denying Power Ventures' motion to dismiss means terribly much. The most controlling concept is:
"Facebook need not allege the exact content that [Power Ventures is] suspected of copying at this stage of the proceedings. There is no requirement that copyright claims must be pled with particularity."
All the court is saying is that whole FaceBook pages MAY have been cached and that that MAY be a direct copyright infringement and it MAY be an indirect copyright infringement. Left unsaid was that it MAY also be no infringement.
2. I think the most interesting question raised by Thomas is whether scraping the copyright protected portions of a page should be considered fair use when the aim and actual result of the scraping was to mine non-copyrighted data. Should a website owner be entitled to claim that data mining (presumably not actionable under Feist) is actionable merely because some copyrighted material happened to be electronically copied in a collateral sort of way? I'm not equipped to answer this either, but I like the fair use argument here.
Posted by: Larry Lint | May 28, 2009 at 08:40 PM
What about the fact that the owner of the actual data that Power.com was getting gave Power.com express permission to get it - even directing them to do so? The facebook users own the data they put into facebook and can give it to anyone they desire.
Posted by: KMS | August 27, 2009 at 02:55 PM