DATA SCRAPING, DATABASE PROTECTION AND THE USE OF BOTS AND ARTIFICIAL INTELLIGENCE TO GATHER CONTENT AND INFORMATION Excerpted from Chapter 5 (Data Scraping, Database Protection and the Use of Bots and Artificial Intelligence to Gather Content and Information) from the April 2020 updates to E-Commerce and Internet Law: Legal Treatise with Forms 2d Edition A 5-volume legal treatise by Ian C. Ballon (Thomson/West Publishing, www.IanBallon.net) INTERNET, MOBILE AND DIGITAL LAW YEAR IN REVIEW: WHAT YOU NEED TO KNOW FOR 2021 AND BEYOND ASSOCIATION OF CORPORATE COUNSEL JANUARY 14, 2021 Ian C. Ballon Greenberg Traurig, LLP Silicon Valley: Los Angeles: 1900 University Avenue, 5th Fl. 1840 Century Park East, Ste. 1900 East Palo Alto, CA 914303 Los Angeles, CA 90067 Direct Dial: (650) 289-7881 Direct Dial: (310) 586-6575 Direct Fax: (650) 462-7881 Direct Fax: (310) 586-0575 [email protected] <www.ianballon.net> LinkedIn, Twitter, Facebook: IanBallon This paper has been excerpted from E-Commerce and Internet Law: Treatise with Forms 2d Edition (Thomson West April 2020 Annual Update), a 5-volume legal treatise by Ian C. Ballon, published by West, (888) 728-7677 www.ianballon.net Ian C. Ballon Silicon Valley 1900 University Avenue Shareholder 5th Floor Internet, Intellectual Property & Technology Litigation East Palo Alto, CA 94303 T 650.289.7881 Admitted: California, District of Columbia and Maryland F 650.462.7881 Second, Third, Fourth, Fifth, Seventh, Ninth, Eleventh and Federal Circuits Los Angeles U.S. Supreme Court 1840 Century Park East JD, LLM, CIPP/US Suite 1900 Los Angeles, CA 90067 [email protected] T 310.586.6575 LinkedIn, Twitter, Facebook: IanBallon F 310.586.0575 Ian C. Ballon is Co-Chair of Greenberg Traurig LLP’s Global Intellectual Property & Technology Practice Group and represents companies in intellectual property litigation (including copyright, trademark, trade secret, patent, right of publicity, DMCA, domain name, platform defense, fair use, CDA and database/screen scraping) and in the defense of data privacy, cybersecurity breach and TCPA class action suits. Ian is also the author of the leading treatise on internet and mobile law, E-Commerce and Internet Law: Treatise with Forms 2d edition, the 5-volume set published by West (www.IanBallon.net) and available on Westlaw, which includes extensive coverage of data privacy and cybersecurity breach issues, including a novel transactional approach to handling security breaches and exhaustive treatment of trends in data privacy, security breach and TCPA class action suits. In addition, he serves as Executive Director of Stanford University Law School’s Center for the Digital Economy. He also chairs PLI's annual Advanced Defending Data Privacy, Security Breach and TCPA Class Action Litigation conference. Ian previously served as an Advisor to ALI’s Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transactional Disputes (ALI Principles of the Law 2007) and is a member of the consultative group for the Data Privacy Principles of Law project (ALI Principles of Law Tentative Draft 2019). Ian was named the Lawyer of the Year for Information Technology Law in the 2021, 2020, 2019, 2018, 2016 and 2013 editions of Best Lawyers in America and was recognized as the 2012 New Media Lawyer of the Year by the Century City Bar Association. In 2020, 2019 and 2018 he was recognized as one of the Top 1,000 trademark attorneys in the world for his litigation practice by World Trademark Review. In addition, in 2019 he was named one of the top 20 Cybersecurity lawyers in California and in 2018 one of the Top Cybersecurity/Artificial Intelligence lawyers in California by the Los Angeles and San Francisco Daily Journal. He received the “Trailblazer” Award, Intellectual Property, 2017 from The National Law Journal and he has been recognized as a “Groundbreaker” in The Recorder’s 2017 Litigation Departments of the Year Awards for winning a series of TCPA cases. In addition, he was the recipient of the California State Bar Intellectual Property Law section's Vanguard Award for significant contributions to the development of intellectual property law. He is listed in Legal 500 U.S., The Best Lawyers in America (in the areas of information technology and intellectual property) and Chambers and Partners USA Guide in the areas of privacy and data security and information technology. He has been recognized as one of the Top 75 intellectual property litigators in California by the Los Angeles and San Francisco Daily Journal in every year that the list has been published (2009 through 2020). Ian was also listed in Variety’s “Legal Impact Report: 50 Game-Changing Attorneys” (2012), was recognized as one of the top 100 lawyers in L.A. by the Los Angeles Business Journal and is both a Northern California and Southern California Super Lawyer. Ian holds JD and LLM degrees and the CIPP/US certification from the International Association of Privacy Professionals (IAPP). E-COMMERCE & INTERNET LAW Treatise with Forms—2d Edition IAN C. BALLON Volume 1 For Customer Assistance Call 1-800-328-4880 Mat #42478435 Chapter 5 Data Scraping, Database Protection, and the Use of Bots and Artificial Intelligence to Gather Content and Information 5.01 Database Law, Access Rights, and the Automated Means Used to Extract, Compile and Analyze Data—In General 5.02 Copyright Protection for Databases 5.02[1] Scope of Protection 5.02[2] Enforcement of Database Copyrights and the Virtual Identicality Standard 5.03 Contractual and Licensing Restrictions 5.03[1] In General 5.03[2] Database Contract Case Law 5.03[3] The Scope of Contractual Restrictions 5.03[4] Forms 5.03[5] Interference with Contract or Prospective Economic Advantage 5.03[6] Unjust Enrichment 5.04 Common Law Misappropriation and Unfair Competition 5.04[1] Misappropriation (including the “Hot News” Doctrine) 5.04[2] Unfair Competition 5.04[3] Patent Preemption of State Law Claims 5.05 Trespass and Conversion 5.05[1] Trespass to Chattels 5.05[2] Conversion 5.06 Computer Fraud and Abuse Act 5.07 DMCA and BOTS Act Claims 5.07[1] DMCA Anti-Circumvention Provisions Pub. 4/2020 5-1 E-COMMERCE AND INTERNET LAW 5.07[2] Removing, Altering or Falsifying Copyright Management Information 5.07[3] BOTS Act Anticircumvention 5.08 Lanham Act Remedies 5.09 Trade Secret Protection 5.10 EU Database Directive 5.10[1] Overview 5.10[2] Copyright Protection for Databases 5.10[3] Sui Generis Protection 5.10[3][A] In General 5.10[3][B] Territorial Scope of Protection 5.10[3][C] Term of Protection 5.11 Sample Injunction Order 5.11[1] Overview 5.11[2] FORM 5.12 Anti-Scraping Measures Pursuant to the Cybersecurity Information Sharing Act 5.13 Checklist of Potential Ways to Protect Database Content 5.14 Checklist for Ethical Scraping Practices 5.15 Managing By Contract the IP Liability Risks of Artificial Intelligence 5.16 Laws Requiring Disclosure of the Use of Bots KeyCiteL: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on WestlawL. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials. 5.01 Database Law, Access Rights, and the Automated Means Used to Extract, Compile and Analyze Data—In General Data and information contained in databases or stored online may be protected from third party use in the United States to varying degrees by a smorgasbord of state and federal laws that may apply, depending on the nature of the database and ways in which it is protected, the type of infor- mation (whether publicly available or proprietary, factual or creative), how the data or content was accessed, and what is 5-2 DATA SCRAPING,DATABASE PROTECTION 5.01 being done with it. The specific requirements to state a claim under potentially applicable laws, and an array of defen- ses—including fair use, statutory exceptions and various preemption doctrines—potentially limit a database owner’s ability to protect its data and information from unwanted third party use. For these reasons, data or screen scrap- ing1—or the practice of automatically extracting unprotect- able facts or other data from third party websites or other locations—if done correctly, is permissible in certain instances. The variety of fact-specific claims and defenses, and evolving circuit splits in some areas of potentially ap- plicable law, make database protection and screen scraping an area where close adherence to the law, and how it is developing, is important. It is also an area where missteps, by either database owners or screen scrapers, can have sig- nificant consequences. This chapter addresses the various claims and defenses potentially applicable and provides practical checklists2 for database owners seeking to protect their data and those engaged in lawful scraping (including through the use of artificial intelligence). It also addresses E.U. law on database protection.3 In addition to considering proprietary and access rights to data and information, this chapter addresses the automated means employed for extracting data online, through the use of bots or intelligent agents to scrape data or other informa- tion from databases. The flipside to thin database protection is that competitors and others may, subject to the various laws analyzed in this chapter, freely access data that is not protected through the various means outlined in this chapter. Businesses typically use bots or intelligent agents to automatically search for and retrieve particular data. The legal regime is largely the same regardless of whether the software agents are preprogrammed to perform a routine task, intelligent agents that are programmed to make deci- sions, or agents using machine learning or artificial intel- ligence (referred to generally as AI).