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How to ensure contractually that Web Data Scraping Software is used in a way that does not ‘overly’ violate Third Parties’ IP & Data Privacy Rights?

Miami – February 27, 2020

Web data scraping/extraction software platforms typically provide users with a web-based application tool automating the crawling or retrieval of data from third-party websites. Web crawling, also called web scraping or data scraping, is a computer program technique used to retrieve and collect large amounts of data from websites where regular-format data can be extracted and processed into easy-to-read structured formats. For instance, a Web data scraping/extraction software (“Software”) may enable such users to extract and collect data from publicly accessible third party websites (“Extracted Data”) into an excel spreadsheet for use by the Software users.

Web data scraping and extraction activities, enabled by developers/owners of web scraping software platforms (“Licensor”) and conducted by Software users (“Licensee(s)”), are considered (i) as highly questionable, (ii) as intrinsically unethical, or (iii) in some countries (i.e. Australia) and under certain conditions (Australian prohibition being limited to email address harvesting) even as illegal.

Preventing Violations of Intellectual Property Rights

Under the Software license agreement entered into between the Licensor and the Licensee (the “Agreement”), the Licensee should expressly undertake to obtain all rights and authorizations from the third party owners of data, which the Licensee would like to extract, prior to using the Software to copy, store, link, or display the Extracted Data. The Licensor, in its sole discretion, may insert in the Agreement, a provision listing specific third-party websites or general types/categories of third-party websites the Licensee may and/or may not scrape data from. Needless to say that Web scraping is necessarily illegal and therefore prohibited in the event that the Extracted Data is copyrighted.

For all cases where proprietary, copyrighted and/or confidential data may be included as part or all of the Extracted Data, it would be wise to ensure that the Agreement also includes a provision under which the Licensee expressly agrees to comply with all applicable copyright and/or other intellectual property laws covering the Extracted Data including by not reproducing/copying, retaining and reselling such copyrighted, proprietary and/or confidential Extracted Data.

Protecting Third Parties’ Personal Data

When it comes to Third Parties’ Personal Data, it would be recommendable that the Licensor state in Agreement that it will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of any personal data collected, scraped and extracted by the Licensee when using the Software. It is also recommended that the Agreement impose on Licensees an obligation not to (i) use the Extracted Data in violation or breach of any applicable data protection legislation, (ii) permit or allow any third-party to access the Extracted Data being scraped by the Software, and (iii) perform any data extraction/scraping that is illegal in any state or country where the Licensee conducts its Web data scraping and extraction activities.

Moreover, the Licensor may also wish to state in the Agreement that the Licensee shall:

- be solely responsible for any legal liabilities incurred through Licensee’s misuse of the Extracted Data;

- abide by and comply with all applicable local, state, national and foreign laws, treaties and regulations applicable to and in connection with the Licensee’s use of the Software, including those related to data privacy protection, international communications and transmission of technical or personal data.

Last but not least, it is useful to point out that before developing and using any Web data scraping/extraction software, it is important that both Licensor and Licensees implement the necessary technical, organizational and contractual steps (including via Ethical Web Data Scraping/Extraction Software License Agreements) to ensure the Web data scraping/extraction activities are performed not only in a fully legal manner but also (when some unethical web crawling practices are not prohibited by law) in the most ethical way possible from the standpoint of third parties’ intellectual property and data privacy rights.

Dr. Ariel Humphrey