Scraping Lawsuit Survives Dismissal Motion–CouponCabin v.

We blog pretty much every scraping case we see; we just don’t see many of them. As I’ve told you before, scraping is ubiquitous but of dubious legality. Today’s case reiterates just how hard it is for scrapers to win in court if challenged.

The case involves competitors in the online coupon industry. The facts alleged by the plaintiff look very typical for competitive scraping. CouponCabin alleges that and several other sites scrape offers from its site, either on an automated or manual basis. In response, CouponCabin allegedly deployed technological blocks against “all traffic, including legitimate users, emanating from certain cloud computing providers and internet service providers identified as being used particularly heavily by the Defendants to conduct scraping activities.” CouponCabin also allegedly sent cease-and-desist letters to most of the defendants. Despite the technological blocks and demand notices, CouponCabin alleges “the Defendants knowingly and intentionally circumvented [the Plaintiff’s] security measures in order to continue their data scraping activities.”

CouponCabin brought the following claims: Computer Fraud & Abuse Act (CFAA), anti-circumvention (DMCA 1201), breach of contract, trespass and tortious interference. The defendants moved to dismiss the CFAA, DMCA and contract claims.

CFAA. The court denies the dismissal motion because “CFAA liability may exist in certain situations where a party’s authorization to access electronic data—including publicly accessible electronic data—has been affirmatively rescinded or revoked.”

DMCA. The court grants dismissal (with leave to amend) because CouponCabin didn’t allege effective control by its technological measure because its blocking efforts didn’t work. To proceed with the DMCA claim, CouponCabin will have to allege that “a user of the Plaintiff’s website is required to apply ‘information or a process or treatment’ to gain access (e.g., by providing a password).”

Breach of Contract. Everyone apparently agrees that CouponCabin didn’t impose a clickthrough agreement on users who browse offers. As you can infer, this sends us into “browsewrap” territory, and what an ugly destination that is. Without the clickthrough, the court should say, easily and with confidence, that there’s no contract. Instead, the court says “browsewraps” can be enforceable “when a user has actual or constructive knowledge of the website’s terms and conditions” (citing, among others, the Ninth Circuit’s Nguyen v. Barnes & Noble trainwreck). Even if that’s the right standard, the defendants throw some serious shade on the visibility of CouponCabin’s alleged terms, describing how:

[t]he hyperlink directing users to Plaintiff’s Terms of Use is listed below 16 other links at the bottom of every page of the CouponCabin website. And while the hyperlink’s font (white) is adequately contrasted by the color of its background (grey), it is buried at the bottom of each webpage. On the homepage alone, a user must scroll through nine screen shots to arrive at the hyperlink of the Terms and Conditions. Additionally, if printing the homepage, the hyperlink appears at the end of a 14-page printout.

Sounds like there’s no contract to me. This judge is less confident:

The Court is therefore reluctant to declare the browsewrap agreement’s unenforceability at this early stage of the litigation—particularly in light of the Plaintiff’s allegations that the Defendants “knowingly and intentionally circumvented [the Plaintiff’s] security measures in order to continue their data scraping activities”, even after the Plaintiff communicated with the Defendants and “demand[ed] that they cease and desist their data scraping, misappropriation of Coupon Content or data from the [Plaintiff’s] website”. Based on these pleadings, a determination as to whether the Defendants had sufficient notice of the Terms and Conditions is more appropriately answered at a later point in the litigation.

Sigh. How hard is it for courts to kill a “browsewrap”? Interestingly, the court implies the C&D may have communicated the contract terms but doesn’t cite the directly-on-point Second Circuit v. Verio ruling.

Remember, for their scraping to be legal, the defendants have to win on every claim. This ruling suggests how much more work they have left to do.

Case citation: Couponcabin LLC v., Inc., 2016 WL 3181826 (N.D. Ind. June 8, 2016)

Selected blog posts on scraping:

* Using Scraper to Harvest Records Isn’t Fraudulent Access Under CFAA–Fidlar v. LPS
* QVC Can’t Stop Web Scraping–QVC v. Resultly
* Craigslist Wins Routine But Troubling Online Trespass to Chattels Ruling in 3Taps Case
* Multiple Listing Service Gets Favorable Appellate Ruling in Scraping Lawsuit
* Online Trespass to Chattels Needs Structural Reform
* Anti-Scraping Lawsuits Are Going Crazy in the Real Estate Industry
* Craigslist’s Latest Moves Show It Cares More About Its Market Position Than Delivering Value to Its Users
* Anti-Scraping Lawsuit Largely Gutted–Cvent v. Eventbrite
* Interesting Database Scraping Case Survives Summary Judgment–Snap-On Business Solutions v. O’Neil