Early last month, federal Judge Jeremy Fogel issued an order in the case of Facebook v. Power Ventures, a lawsuit over a third-party platform that allegedly attempts to "scrape" content for and from users on different social network sites into a single UI. Facebook sued Power, claiming violations of copyright, anti-circumvention regualtions, CAN-SPAM, and the Computer Fraud and Abuse Act. More on the case can be found here.
In the ruling, Judge Fogel primarily addressed the copyright and circumvention claims and whether to dismiss any of the claims outright because they were based on invalid legal theories. He refused to do so based on two cases that have troubled many copyright and internet scholars: MAI v. Peak, 991 F.2d 511 (9th Cir. 1993) and Ticketmaster v. RMG, 507 F.Supp.2d 1096 (C.D. Cal. 2007).
Fogel's reasoning, under these cases, is that any scraping of a webpage involves copying that webpage into a computer's memory in order to extract the underlying information contained therein. Even though this "copying" is ephemeral and momentary, it is enough to constitute a "copy" under Section 106 of the Copyright Act and therefore what we lawyers call a prima facie (or "on its face") case of infringement. Since Facebook's Terms of Service prohibit scraping (and thus, facebook has not given any license to third parties or users to do so), the copying happens without permission.
While there are many reasons to disagree with this analysis and with the MAI/RMG line of cases in general (see, e.g., Section 101 of the Copyright Act which defines a "copy" as a "material object" that is "fixed" such that it is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."), there is an even larger set of problems with the implications of the decision, especially for the doctrines of fair use and copyright misuse.
Fair Use
In his order, Judge Fogel does not discuss fair use directly. In fact, it's unclear whether or not PV raised the issue. Perhaps they are waiting for a later stage in the case, such as summary judgment. However, Fogel does discuss the core of what would be at issue in the fair use arugment. When disucssing the copying that is alleged, he states:
In other words, Fogel is arguing that intermediate or temporary copying of FB content in order to extract non-FB content may violate FB's copyrights. This type of argument, however, has been rejected by most courts. Intermediate copying, even extensively, of another's copyrighted works in order to extract non-proprietary information has been found to be fair use in numerous cases, including several in the Ninth Circuit Court of Appeals, the jurisdiction where Judge Fogel resides. See, e.g., Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992) and Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000).
In both of these cases, direct competitors used intermediate copying of proprietary content in order to create alternative ways of using technology and accessing information. In Sega, it was to create brand new games that worked on Sega's Gensis console. In Connectix, it was to create a Playstation emulator for PCs so that PC users could play PS games. In finding these actions fair use, the courts emphasized that the ultimate end product of the process did not infringe any copyrights in the original copied works and that the purpose was pro-competitive -- the creation of other products and platforms for users to take advantage of technology and information products. I see no difference between these cases and what PV is trying to do here, especially since there seems to be no reasonable other way to access this information.
Copyright Misuse
Moreover, this is also a case that raises serious copyright misuse issues. Copyright misuse is a judge-created doctrine used to curb abuse of copyright licenses. For example, in one case, an attempt to restrict copyright licensees from creating competitive computer-aided design programs for 99 years was found to be abusive (in part because copyright only lasted 75 years at the time). The court found that the copyright owner was trying to effectively extend the term and scope of its copyright beyond what copyright law permitted, and that would prevent people from legitimately developing competitive software. The penalty was a loss of the ability to enforce the copyright.
Here, I see simiar issues. If FB is claiming that it is a violation of its copyrights to access user information on its website but yet concedes that they have no proprietary rights in user information, it would seem to me that this is just another attempt to extend the scope of its copyright beyond what copyright law gives it ownership over. In fact, in FB's papers, it appears to admit as much. Moreover, the case for misuse here appears much stronger that the 99-year-restriction case. Presumably users, who do own whatever rights exist to the information sought, have expressly given PV permission to gather this info. FB is blatantly interfering with PV's attempt to acquire information as an agent of its true owners. Seems like a pretty blatant copyright land grab to me. Perhaps this is why FB has tried so diligently (and now publicy) to convince users to assign over their rights to FB, so they can avoid the legal penalties for potentially anti-competitive conduct like locking out third-party web services the user might wish to engage.
Anti-Circumvention Claims
The anti-circumvention claims are a bit more complicated, so let me just say this. There exist in the law exceptions to these restrictions for reverse engineering and interoperability purposes. See 17 U.S.C. 1201(f). Whether or not these apply is very fact-intensive but possible. Moreover, as the court recognized, if there is no underlying copyright infringement, the case for a violation of the anti-circumvention laws is much much weaker. See Chamberlain v. Skylink, 381 F.3d 1178, 1203 (Fed. Cir. 2004).
In any case, this lawsuit is worth watching. I'm not sure if PV will keep on fighting or fold, but one hopes that if they do fight, they ring these two bells in the next round of briefing. Judge Fogel is a good guy and a smart judge and has generally been sensitive to promoting democractic and public values in technology law, so the right framing of the issue should hopefully help reach the right decision in this case or similar ones to come.
Dear Jason,
Thank you for this post. Fair use is something that means a lot to me as well in my work at the Center for Social Media. Your framing of the issue is well thought out and I hope that Power Ventures has a chance to work with you at some point while developing their case. Please have a look at our fair use documents sometime; we'd love to have your thoughts. We've brought together experts in the field of documentary filmmaking, online video creation and media literacy to create codes of best practices that describe norms within each field pertaining to fair use.
Thanks!
Micael Bogar
Center for Social Media
www.centerforsocialmedia.org/fairuse
Posted by: Micael Bogar | June 10, 2009 at 08:27 AM