Tuesday, July 10, 2007

Score One for the Spiders? - Copyright Infringement?

The first service is the more interesting one for our purposes (though they're both relevant) because it's that service which directly involves the use of a spider. Cleverly named "Boat Rover," this software program would connect to a targeted Web site, extract specific facts about a yacht for sale from a public yacht listing, collect those facts, and enter them in a searchable database. Boat Rover did not hold onto the HTML used in the listing; it copied it just long enough to get the facts, then discarded it. Yes, this matters -- because this case was dealing with a question of copyright infringement. Specifically, did NSM infringe any copyrights when it sent Boat Rover to repeatedly between November, 2001, and April, 2002, to collect information which it then posted on its own Web site?

Not according to Judge Merryday, who presided over the case. I'm sure you'd love to hear that it was a simple "no," thus reaching a decision once and for all in favor of spiders running rampant, but anyone who's ever had reason to consult a lawyer knows how unlikely that would be. Legal cases involving high technology, especially the Internet, tend to be less cut-and-dried. In this case, two important points were raised in consideration of whether any copyrights were infringed. First, what kind of information was Boat Rover collecting? In this case, it was just the facts: manufacturer, model, length, year of manufacture, price, location, and the URL of the Web page that contained the yacht listing. Well, fortunately for NSM (and Joe Friday), there's an existing precedent that states that facts cannot be copyrighted; facts are part of the public domain, and thus there can be no question of copyright infringement. There's no copyright to infringe!

The second aspect of this service that might have opened NSM up to charges of copyright infringement involved displaying these listings on its Web site. Remember when I mentioned that Boat Rover's discarding the HTML information was important? That meant that NSM had to code the information without using's coding as a template -- in theory, at least. And in fact, Judge Merryday found enough differences between the "look and feel" of a listing and a listing to keep NSM in the clear over possible copyright infringement. The judge wouldn't even grant a copyright on its use of descriptive headings like "electrical," "accommodations," and "galley" to describe specific features of a yacht -- because the terms were industry standards, and at least two other yacht brokering Web sites were using those terms in the very same way. The legal reasoning seems to go something like this: ideas themselves do not receive copyright protection. Expression of a particular idea does. However, in some cases, the ways to express a particular idea are so limited that the expression doesn't receive copyright protection, because that would be just like protecting the idea. In this case, there's only so many headings you can use for various areas of a yacht when listing it for sale, so -- like facts -- they don't receive copyright protection.

The second service that NSM offered its customers was a "valet service." With the permission of a yacht broker using the service, NSM would move, delete, or modify the yacht broker's listing. complained that NSM's people were copying and pasting listings from over to The court found strong enough evidence that the only items being cut and pasted were descriptions and pictures, not HTML or anything that could claim a copyright to. In fact, the court found (and both NSM and agreed) that the yacht brokers themselves owned the copyrights to their own listings -- and, since NSM was doing its thing with their permission, they weren't infringing any copyrights.

Interestingly, this case was a "pre-emptive strike;" NSM was the plaintiff. They brought the suit seeking a declaration that they did not infringe any copyright owned by And they won, too.

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