Cairo v. Crossmedia Services

Cairo, Inc. v. Crossmedia Services, Inc., 2005 WL 756610 (N.D. Cal. Apr. 1, 2005). Cairo runs a search engine listing advertised sales. CMS has a database of advertisements. To build its search database, Cairo’s robot crawls CMS’s servers, which CMS objects to.

This ruling addresses whether Cairo is bound by CMS’s user agreement for purposes of the forum selection clause. The court says yes because (among other reasons) Cairo’s “repeated and automated use of CMS’s web pages can form the basis of imputing knowledge to Cairo of the terms on which CMS’s services were offered” (cite to Register.com v. Verio).

This unquestioning adoption of Register.com is troubling. The Register.com case improperly conflates the doctrine of quasi-contract (restitution as a cause of action) with offer/acceptance (the apple stand analogy shows this best). Here, the court unhesitatingly applies Register.com without questioning it, suggesting that browsewrap “contracts” may be binding against electronic agents without any further evidence of manifestation of assent. This is the wrong direction for contract law and search engine law generally. The only way I can make sense of this case is that Cairo may not have crawled the web indiscriminately but instead may have targeted certain sites; if it configured its robot for CMS’s website, then perhaps we shouldn’t be sympathetic.

Otherwise, this case suggests that every search engine using a crawler is bound by non-mandatory “terms of use” contract terms simply by repeatedly crawling a website. We know that can’t be the law, and I’m confident courts applying more careful scrutiny to the facts will reach smarter results. Either way, this is a case worth watching.

Hat tip to InternetCases.com for calling attention to the case.

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