Last month I wrote a post titled “Online Agreements – Easy To Get Right, Easy To Get Wrong.” In that post I discussed two cases in which the plaintiff had failed to take appropriate steps to necessary to impose terms and conditions on its customers.
A recent case decided by the federal district court for the District of Pennsylvania provides yet another example of how sloppy online contracting can doom a claim based on an online agreement.
The case, CollegeSource, Inc. v. AcademyOne, Inc., (E.D. Pa. October 25, 2012), involves the practice colloquially referred to as “screen scraping” — that is, copying information from displayed webpages, usually in large quantities for commercial use. See, e.g., Ef Cultural Travel Bv v. Explorica , 274 F.3d 577 (1st Cir. 2001) (describing screen scraping).
It’s easy — legally and technically — to prevent this by prohibiting it in the site’s online terms and conditions. Doing so allows the site owner to assert not only state-law breach of contract, but the potentially more advantageous federal Computer Fraud and Abuse Act (“CFAA”). However, the site user must agree to the terms and conditions.
Unfortunately for CollegeSource, it didn’t get this quite right. Specifically, CollegeSource offered three services. Two of the services required that the user accept a “browsewrap” subscription agreement that expressly prohibited scraping (“you agree not to . . . scrape or display data from the Content for use on another web site or service”). However, the third service did not require users to agree to this restriction. Think of this as two doors locked, one open. CollegeSource’s contract-based argument that the subscription agreement applied to the third service failed to persuade the district court judge. The result: no breach of contract and no violation of the CFAA.