Comments on: A Closer Look at a Troubling Anti-Scraping Ruling from Spring–Compulife Software v. Newman (Guest Blog Post)

By: Meester Bonetti

Meester Bonetti — Mon, 11 Jan 2021 23:48:00 +0000

https://www.ipwatchdog.com/2020/07/14/improper-means-eleventh-circuits-dubious-trade-secrets-decision-compulife-software-v-newman-part-ii/id=123265/ in case you wanted to read an opinion from a competent IP attorney.

By: Moses

Moses — Sat, 09 Jan 2021 17:03:00 +0000

In reply to James Pooley. This sort of half witted nonsense is what happens when attorneys believe that simply because of the fact they passed the BAR they actually posses a high level of intellect. EVERY website is designed to allow an individual access to the site, and not necessarily designed for automated access. However, ALL well written websites must be designed to work well when accessed by automated software if the website proprietor has any intentions for his/her website to crawl to the top of GOOGLE searches. Claiming that a website was "constructed carefully to ensure that one person at a time would be able to access one insurance quote at a time" shows how passing a State or States bar exam does NOT guarantee the attorney in question has even the most basic level of intelligence. In fact, the attorney for the Plaintiff this case bet his entire case (in BOTH trials) on the hope that the Judge is as ignorant technically as you are. In the first trial he (the attorney for the Plaintiff) failed miserably because Judge Hopkins was an experienced programmer for 20 years prior to becoming an attorney. Whether or not that same attorney's intentional deception will work in the new trial outcome remains to be seen. Claiming that anything that Compulife software produced was "Carefully designed" certainly shows you have not read the transcripts of even the first trial (I don't think the second trial transcripts are public record until the trial is concluded).

By: Moses

Moses — Fri, 20 Nov 2020 23:45:00 +0000

The “Transformative Database” term is a rarely used term, but the term typically is used for applications that turn data from one format to another such as an export to XML from a tab delimited file, or other data format. This term is simply a made up term by Robert Barney himself and used by his attorney to confuse the technically challenged into believing there is some sort of high tech magic and genius involved in an outdated unnecessarily complex hack job of an application. One I might add where his programmer could not be bothered to add the simplest of protections. It says he went out of his way to protect his database with a “Digital Watermark”. In fact he added a two characters to one of his least quoted carriers quotes. The simple code takes his users 3 numeric digit user id and performs a few bit wise operations on it to create a two byte code. He did this after one of many scraping incidents so he would know which user of his was actually being scraped.

As far as the “Transformative Database” it is nothing more than the sort of database a programmer would build to hold federal, State and Local income tax rate tables to retrieve for payroll calculations. No rocket science going on there, trust me.

By: Moses

Moses — Fri, 20 Nov 2020 23:16:00 +0000

“second, because the database was the core of its business model, the plaintiff was unusually protective of its database. It was so protective of the database that it added a digital watermark to it, which appeared on the defendant’s website. So unique and special was the plaintiff’s database, that the court called it the “Transformative Database.”

Most databases aren’t copyrighted. Most aren’t that transformative. Most instances of copying aren’t quite so brazen as the defendants’ here. These were all material considerations driving the outcome. As such, most plaintiffs are unlikely to share the facts that drove this result and may not be able to successfully rely on this case as precedent (though I’m sure plenty will try).”

100% Factually incorrect. The Database DID not have a copywrite, however immediately prior to filing these cases and at least 5 years post production, Compulife registered copyrights on two versions of simple 10 field web form. Nothing in that simple and poorly written HTML form is unique in anyway (although the troubled Mr. Barney thinks because in addition to 50 states with numeric value properties according to alphabetic order he added the District of Columbia (which became 52) and second New York entry for New York Businesses it threw off the numbers following. That he claims makes his simple web form a unique work of genius. In addition the Name properties assigned to the Option tags, radio buttons and text boxes are camel cased and the required export fields in the HTTP request generated, and the programmer copied the exact Camel Casing and spelling of variables in his C++ web engine that will ultimately receive these parameters, they qualify as some sort of unique trade secret. That is simply false.

In addition to all this the so called “finding of facts” used to access applicable case law used in the appellate court decision ARE NOT the findings of fact but rather a direct plagiarism of Compulife’s owner’s pre-trial deposition. It should be noted that Robert Barney does not have even the slightest level of technical expertise and his statements alone in an irate deposition are not and where not the courts findings of facts. The reason for this mishap was intentional and the result of Compulife’s council intentionally deceiving the court.

By: Moses

Moses — Fri, 20 Nov 2020 23:03:00 +0000

“Although the Transformative Database is based on publicly available information—namely, individual insurers’ rate tables—it can’t be replicated without a specialized method and formula known only within Compulife.”

Patently false as are the numerous claims. Absolutely nothing about this database can not be duplicated by anyone with even a sub standard intelligence level (Mr. Barney certainly qualifies in that regard)

The claims of software piracy are even more ridiculous in this case.

By: James Pooley

James Pooley — Tue, 22 Sep 2020 16:42:00 +0000

Eric and Kieran, this is a very thoughtful post — however, as to the trade secret issues I disagree. Coincidentally today I posted on the same topic on IP Watchdog, where I argued that the Compulife opinion is a logical application of the flexibility that characterizes the “improper means” element of trade secret misappropriation. Where I think your analysis fails is in broadly characterizing Compulife’s database as “publicly accessible.” That elides the very important fact that its public accessibility was constructed carefully to ensure that one person at a time would be able to access one insurance quote at a time. Sort of like a turnstile in the subway. The defendant created robotic software to defeat that limitation, in violation of the user agreement. So what they did shouldn’t fairly be characterized as simply taking “publicly accessible” data; instead, they created a tool that would fake a human inquiry and repeat it 42 million times! The database was no more “publicly accessible” than was the construction site in the DuPont v Christopher case. In order to get to the valuable stuff you had to create a “trick” to get around the system — then it was (as the U.S. Supreme Court called it when citing DuPont with approval in Kewanee v. Bicron) “aerial reconnaissance”, and now it’s “data scraping”. The question is whether, by defeating the reasonable expectations of the trade secret owner through technological means, you have done something that disturbs the “standards of commercial ethics” (as the Kewanee court described one of the twin pillars of trade secret law). The Compulife court merely held that that was a permissible way to analyze the case, and unless we’re going to revisit Kewanee and the foundations of trade secret law, I think they got that part absolutely right. Just because a restaurant sets up a self-serve smorgasbord doesn’t mean that a competitor can drive up a truck and load up all the food for the cost of one meal. What the defendants did in Compulife was clearly unfair, unless your view is that any limitations on use are inappropriate and unenforceable as a matter of policy.

By: James Pooley

James Pooley — Mon, 21 Sep 2020 18:20:00 +0000

Eric, another very thoughtful post — however, as to the trade secret issues I disagree. Coincidentally today I posted on the same topic on IP Watchdog, where I argued that the Compulife opinion is a logical application of the flexibility that characterizes the “improper means” element of trade secret misappropriation. Where I think your analysis fails is in broadly characterizing Compulife’s database as “publicly accessible.” That elides the very important fact that its public accessibility was constructed carefully to ensure that one person at a time would be able to access one insurance quote at a time. Sort of like a turnstile in the subway. The defendant created robotic software to defeat that limitation, in violation of the user agreement. So what they did shouldn’t fairly be characterized as simply taking “publicly accessible” data; instead, they created a tool that would fake a human inquiry and repeat it 42 million times! The database was no more “publicly accessible” than was the construction site in the DuPont v Christopher case. In order to get to the valuable stuff you had to create a “trick” to get around the system — then it was (as the U.S. Supreme Court called it when citing DuPont with approval in Kewanee v. Bicron) “aerial reconnaissance”, and now it’s “data scraping”. The question is whether, by defeating the reasonable expectations of the trade secret owner through technological means, you have done something that disturbs the “standards of commercial ethics” (as the Kewanee court described one of the twin pillars of trade secret law). The Compulife court merely held that that was a permissible way to analyze the case, and unless we’re going to revisit Kewanee and the foundations of trade secret law, I think they got that part absolutely right. Just because a restaurant sets up a self-serve smorgasbord doesn’t mean that a competitor can drive up a truck and load up all the food for the cost of one meal. What the defendants did in Compulife was clearly unfair, unless your view is that any limitations on use are inappropriate and unenforceable as a matter of policy.

By: News of the Week; September 16, 2020 – Communications Law at Allard Hall

News of the Week; September 16, 2020 – Communications Law at Allard Hall — Mon, 21 Sep 2020 02:31:00 +0000

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