Staving Off Scrapers of User-Generated Content with Electronic Copyright Transfers A Legal (But, Perhaps Not a Practical) Solution

It's a problem that has vexed website owners since the days of the dot-com boom – how to make certain user-generated content available to users or subscribers, but also prevent competitors and other unauthorized parties from scraping, linking to or otherwise accessing that content for their own commercial purposes.

The law on scraping and linking remains undeveloped, and has not provided clear remedies for this kind of access. Given the state of the law, sites often employ the "kitchen sink" strategy against scraping competitors: throwing multiple claims at the unauthorized party in the hope that at least one viable legal theory survives. We last wrote about this approach in a May 2009 post when Facebook brought a multi-count suit against Power Ventures, an online service that allowed social networking users to access all of their accounts through one interface.

One tool that website owners would like to have to combat unauthorized use of user-generated content is copyright — that is, the ability to allege that the unauthorized use of user-generated content constitutes an infringement of the website publisher's copyright. Unfortunately, there is a problem....

Website providers that collect user-generated content typically include licensing provisions in their terms of use whereby users grant the site a non-exclusive license to content while (implicitly or explicitly) providing that the ownership of any copyright in such content remains with the user. The use of a clickwrap agreement to convey a non-exclusive license to such content is a standard practice. Under Copyright Act Section 501, however, a non-exclusive licensee may not bring an action for copyright infringement.

Accordingly, a website provider that wants legal standing to bring a copyright claim against unwanted entities scraping content needs an online agreement that grants additional rights – namely, an exclusive license or an actual transfer of ownership in the underlying copyright. Putting aside – for a moment – the issue of how users will react if a website owner tries to do this, the question is, from a legal perspective, can one obtain an exclusive license or assignment of copyright through online terms of use assented to by users?

This issue was recently addressed by the Fourth Circuit in a dispute between a real estate multiple listing service and an online real estate information aggregator over the copying of photographs and listing information. The listing service...