Data Scraping is in a Legal Gray Area, Eppenauer and Horner Explain

Shook Partner Bart Eppenauer and Associate Wesley Horner have authored “The Latest Legal Trends in Data Scraping and Ownership” for Law360, discussing an Eleventh Circuit decision on data scraping as well as the legal context surrounding the issue. “For many people, the best place to start learning is the internet. From casual browsing to competitive intelligence, publicly available data is one of our best sources of information. With the explosion of artificial intelligence, scraping data from public websites to train AI models has become the new normal," they note. "But to some, data scraping almost seems like hacking."

Horner and Eppenauer assess data scraping from several angles, including the possibilities that scraping may amount to claims for trespass to chattel, breach of contract, copyright infringement or trade secrets. “There are some potential legal barriers to data scraping, so a data owner might investigate possible causes of action to try to stop someone from scraping data. However, not all of causes of action will apply, depending on the nature of data being scraped, the relationship with the data scraper, the type of harm caused, and the different laws and jurisdictions,” they write. “Compounding the challenge, the law is evolving, so it is not always clear whether data scraping actually violates the law.”

“In much the same way that technology and big data have us rethinking some fundamental concepts like data privacy and cybersecurity, we need much greater legal clarity on the boundaries of property rights for data ownership and permissible uses of public data.”