ch.2 the legalities and ethics of web scraping

What should you do before undertaking any legally ambiguous web scraping projects?

Consult a lawyer

What are the three basic types of intellectual property?

Trademarks, copyrights, and patents

What symbols indicate a trademark?

™ or ®

What symbol indicates a copyright?

©

How are patents indicated?

Sometimes by text noting that the invention is patent protected or a patent number but often by nothing at all

What kinds of things can you patent?

Inventions only; no images, text, or information

Why is software able to be patented?

It is the thing or the technique being patented not the data inside it

How likely are you to infringe on a patent by scraping the web?

You are unlikely to do so unless you are building things from scraped diagrams or someone patents a method of web scraping

What is a trademark according to the US patent and trademark office?

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others

What is a service mark?

A word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods

Besides words and symbols, what other things can be trademarked?

Desceiptive attributes like the shape of the Coke bottle or even a color

In what context is “fair use” often discussed?

Copyright law but it also applies to trademarks, it does not apply to patents

Under what conditions would it be okay to use someone else's trademark?

Storing or displaying a trademark as reference to the brand it represents

Where does trademark ownership apply?

It seems to be only applicable within the same industry. For example, there is a color called Pink Panther that is used and owned by a home insulation product. You could create a soft drink that had that color but not another home insulation product with the same color

What is not considered “fair use”?

Using a trademark in a way that might mislead the consumer

What is an example of free use not being applicable to patents?

Patented inventions in one industry cannot be applied to another industry without an agreement with the patent holder

What do both trademarks and patents have in common?

They have to be formally registered in order to be recognized

What makes images, texts, music, etc. copyrighted?

Every piece of material you create is automatically subject to copyright law as soon as you bring it into existence

What is the international standard for copyright called?

The Berne Convention for the Protection of Literary and Artistic Works

What does the Berne Convention say?

In essence, that all member countries must recognize the copyright protection of the works of citizens in other member countries as if they were citizens of their own countries

What does the Berne Convention mean in practice?

As a US citizen, you can be held accountable in the United States for violating the copyright of written material written by someone, in say, France and vice versa

Although there is no need to register a copyright, what creative works are often registered?

Valuable creative works like motion pictures

Why are valuable creative works registered as copyrights?

To make any litigation easier later on and create a strong paper trail about who owns the works

Under what condition are works not considered copyrighted?

They are in the public domain

Of the three types of intellectual property, which is of most concern to web scrapers?

Copyrights

What is an example of a web scraper violating copyright?

I scrape content from someone's blog and publish it on my own blog

Because copyright applies to creative works only, what kind of info is up for grabs by web scrapers?

Statistics and facts

What is the act that allows use of copyrighted content?

Digital Millenium Copyright Act (DMCA)of 1988

What does the DMCA discuss?

Some rules for the automated handling of copyrighted material without many specific rules governing everything from ebooks to telephones

What is the “safe harbor” protection from the DMCA as it applies to web scraping?

If you scrape material from a source you are led to believe contains only copyright-free material, but a user has submitted copyright material to it, you are protected as long as you removed the copyrighted material when notified

What does the DMCA say about security measures?

You cannot circumvent security measures(such as password protection) in order to gather content

What does the DMCA say about “fair use”?

Fair use applies and takedown notices may not be issued according to the “safe harbor” protection if the use of the copyrighted material falls under fair use

In short, how should you think about copyright material?

Never directly publish copyrighted material without permission from the original author or copyright holder

Under what conditions can you store copyrighted material?

You have free access to the copyrighted material and it is stored in your own non-public database for the purpose of analysis

Of the copyrighted data you have stored, what could you do regarding publishing it?

You can publish your database of copyrighted data to your website for viewing or downloading, and you can analyze that database and publish statistics about some kind of meta analysis

Regarding your stored copyrighted material, when should you check the US code to see if what you’re doing is legal?

If you are accompanying your meta-analysis with a few select quotes or brief samples of data, though it is likely also fine

What is it about generative artificial intelligence, or AI, that makes it challenging for copyright law?

They generate new “creative works” based on an already existing corpus of copyrighted material

When might generative AI run into a copyright issue?

The creative work it creates resembles an already existing work

What does the Congressional Research Service define as “resembles?”

They use something called the substantial similarity test

What is the substantial similarity test?

It is difficult to define and varies across US courts; courts have variably described the test as requiring, for example, that the works have a “substantially similar total concept and feel” or “overall look and feel” and that the “ordinary reasonable person would fail to differentiate between the two works

What is the problem with modern complex algorithms regarding copyright?

The AI may have no way of labeling its output as “substantially similar” to a particular input, or even identifying which of the inputs it used to generate its creation

Regarding AI's inability to check for copyright similarity, when might you find out you infringed on copyright?

You get a cease and desist letter or a court summons

Why is the training process used by AI considered infringing on copyright?

It is almost always necessary to download, store, and reproduce copyrighted work

What counterargument are people like OpenAI using to say generative AI falls under fair use?

They are not publishing or using the content in a way that would impact the market of copyrighted works

What does OpenAI's counterargument apply to?

It is primarily used in the context of generative AI algorithms, but the author suspects that its outcome will be applicable to web scrapers built for a variety of purposes

How is “trespass to chattels” different from trespassing laws?

Trespass to chattels applies not to real estate or land but to moveable property, or chattels in legal parlance

When does trespass to chattels apply?

When your property is interfered with in some way that does not allow you to access it or use it

What percentage of global electricity is used by computers?

10%

Why are servers interesting from a legal perspective?

Generally because their owners want other people to consume the server's resources, just not too much

What are examples of good and problematic ways of accessing servers?

Checking out a website via your browser is fine, launching a full scale DDOS attack is not

How many criteria need to be met for a web scraper to violate trespass to chattel?

3

What do many websites do eegarding web scrapers?

The terms of service of the website prohibits them

Even if consent is given to web scrapers, how might websites revoke it?

They will send a cease and desist letter

What is the first condition that must be met for a web scraper to violate trespass to chattel?

Lack of consent

What is the second condition that a web scraper must meet to violate trespass to chattel?

Actual harm

How can a web scraper cause actual harm to a website?

If your scraper takes a website down, or limits its ability to serve other users, this can add to the harm done including server cost

What is the third requirement a web scraper must meet to violate trespass to chattel?

Intentionality

Why is it difficult to argue your web scraper had no intention of causing harm?

You wrote the code, so you know what it does

Even if you don’t meet all three requirements for trespass to chattels to apply, how might you get in trouble?

You violate the terms of service, copyright law, the DMCA, the Computer Fraud and Abuse Act, or one of the other myriad of laws that apply to web scrapers

How has the relationship between web servers and personal computers changed?

Web servers used to be more powerful than personal computers, now the tables have turned somewhat

What is an example of how PCs compare to web servers in terms of specifications?

The author's personal computer has a 3.5 GHz processor and 32 GB of RAM; an AWS medium has 4 GB of RAM and about 3 GHz of processing capacity

In the modern day, what damage can a PC do to a web server?

With a decent internet connection and a dedicated machine, even a single personal computer can place a heavy load on many websites, even crippling them or taking them down completely

Why is it better to leave crawlers running overnight instead of mid afternoon or the evening?

When time is less of an issue, you're not tempted to push the speed of your crawlers

How fast can crawlers run?

If you have about 8 hours, even at the glacial pace of 2 seconds per page, you can still crawl about 14,000 pages

How does the nighttime affect the target audience of the website you’re scraping and thus your web scraping activity?

Assuming the target audience of the website is in your general location