The Ninth Circuit's recent analysis in MDY v Blizzard Entertainment examined contributory/vicarious ("secondary infringement") copyright issues, the "essential step" defense, the important and often highly disputed contractual covenant versus copyright license issue, and last, but certainly not least, the DMCA's role. I recommend you read the full opinion to gain the complete picture, but for this post we'll be focusing on the copyright covenant vs. copyright license issues and touching on the DMCA's role.
As of late there has been a great deal of news and discussion concerning "web scraping." Web scraping is the practice of using computer software to extract information from a website. In short, a wealth of information exists on the Internet and companies of all stripes are interested in collecting it from websites, compiling and combining it, and using it to further their business.Scraping raises a multitude of legal issues, including issues related to privacy and security intellectual property, and laws concerning unauthorized access to computers and trespass to chattels (in fact, the overlapping issues raised by scraping represent a very good example of what we call "information law"). Many companies attempt to stop scraping of their websites from occurring in the first instance. This can be achieved by implementing technologies such as CAPTCHA (which are becoming ubiquitous) that are intended to ensure that a human is entering the website rather than a computer software program or bot. If technologies like CAPTCHA are evaded by scrapers, some websites might pursue an action under the anti-circumvention provisions of the Digital Millennium Copyright Act (the "DMCA"). The DMCA provides for potential statutory penalties and even criminal sanctions for violations of its anti-circumvention provisions. This post explores how the DMCA might be used in this context and looks at some cases addressing whether circumvention of CAPTCHA (and similar protocols) might result in violation of, and liability under, the DMCA.