EF Cultural Travel BT, et al.
v. Zefer Corporation
United States Court of Appeals For
the First Circuit
Decided January 28, 2003
Judge. Defendant Zefer Corporation ("Zefer") seeks
review of a preliminary injunction prohibiting it from using a "scraper
tool" to collect pricing information from the website of plaintiff EF
Cultural Travel BV ("EF"). This court earlier upheld the injunction
against co-defendant Explorica, Inc. ("Explorica"). EF Cultural Travel
BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001) ("EF I"). The
validity of the injunction as applied to Zefer was not addressed because Zefer's
appeal was stayed when it filed for bankruptcy, but the stay has now been lifted.
EF and Explorica are competitors in the student
travel business. Explorica was started in the spring of 2000 by several former
EF employees who aimed to compete in part by copying EF's prices from EF's
website and setting Explorica's own prices slightly lower. EF's website permits
a visitor to the site to search its tour database and view the prices for tours
meeting specified criteria such as gateway (e.g.,
departure) cities, destination cities, and tour duration. In June 2000,
Explorica hired Zefer, which provides computer-related expertise, to build a
scraper tool that could "scrape" the prices from EF's website and
download them into an Excel spreadsheet.
A scraper, also called a "robot" or
"bot," is nothing more than a computer program that accesses
information contained in a succession of webpages stored on the accessed
computer. Strictly speaking, the accessed information is not the graphical
interface seen by the user but rather the HTML source code--available to anyone
who views the site--that generates the graphical interface. This information is
then downloaded to the user's computer. The scraper program used in this case
was not designed to copy all of the information on the accessed pages (e.g., the
descriptions of the tours), but rather only the price for each tour through each
possible gateway city.
Zefer built a scraper tool that scraped two years
of pricing data from EF's website. After receiving the pricing data from Zefer,
Explorica set its own prices for the public, undercutting EF's prices an average
of five percent. EF discovered Explorica's use of the scraper tool during
discovery in an unrelated state-court action brought by Explorica's President
against EF for back wages.
EF then sued Zefer, Explorica, and several of
Explorica's employees in federal court. 2 Pertinently, EF
sought a preliminary injunction on the ground that the copying violated the
federal Copyright Act, 17 U.S.C. § 101 et
seq. (2000), and various provisions of the Computer Fraud and Abuse Act
("CFAA"), 18 U.S.C. § 1030 (2000). The district court refused to
grant EF summary judgment on its copyright claim, but it did issue a preliminary
injunction against all defendants based on one provision of the CFAA, ruling
that the use of the scraper tool went beyond the "reasonable expectations"
of ordinary users. The preliminary injunction states inter alia:
[D]efendant Explorica, Inc., its officers, agents,
servants, employees, successors and assigns, all persons acting in concert or
participation with Explorica, Inc., and/or acting on its behalf or direction are
preliminarily enjoined to . . . refrain, whether directly or
indirectly, from the use of a "scraper" program, or any other similar
computer tool, to access any data useable or necessary for the compilation of
prices on or from the website of plaintiff EF Cultural Travel and its related
entities, and/or the EF Tour Database.
The defendants appealed, but soon after briefing
was completed, Zefer filed for bankruptcy and its appeal was automatically
stayed. 11 U.S.C. § 362(a)(1) (2000). Explorica's appeal went forward and
in EF I a panel of this court
upheld the preliminary injunction against Explorica. The panel held that the use
of the scraper tool exceeded the defendants' authorized access to EF's website
because (according to the district court's findings for the preliminary
injunction) access was facilitated by use of confidential information obtained
in violation of the broad confidentiality agreement signed by EF's former
employees. EF I, 274 F.3d at
On Zefer's re-activated appeal, the question
presented is whether the preliminary injunction is proper as to Zefer. We
conclude that it is proper even as to Zefer, which signed no confidentiality
agreement, but on relatively narrow grounds. Given the prospect of further
proceedings--this appeal is merely from a preliminary injunction--it is helpful
to explain where and why our own reasoning differs from that of the district
court. The principal issues are legal ones as to which our review is de novo.
Cablevision of Boston, Inc. v. Pub. Improvement Comm'n, 184 F.3d 88, 96 (1st Cir.
EF argues at the outset that our decision in EF I
is decisive as to Zefer. But the ground we adopted there in upholding the
injunction as to the other defendants was that they had apparently used
confidential information to facilitate the obtaining of the EF data. Explorica
was created by former EF employees, some of whom were subject to confidentiality
agreements. Zefer's position in that respect is quite different than that of
Explorica or former EF employees. It signed no such agreement, and its prior
knowledge as to the agreement is an open question.
EF suggests that Zefer must have known that
information provided to it by Explorica had been improperly obtained. This is
possible but not certain, and there are no express district court findings on
this issue; indeed, given the district court's much broader basis for its
injunction, it had no reason to make any detailed findings as to the role of the
confidentiality agreement. What can be gleaned from the record as to Zefer's
knowledge certainly does not permit us to make on appeal the finding urged by
What appears to have happened is that Philip
Gormley, Explorica's Chief Information Officer and EF's former Vice President of
Information Strategy, e-mailed Zefer a description of how EF's website was
structured and identified the information that Explorica wanted to have copied;
this may have facilitated Zefer's development of the scraper tool, but there is
no indication that the structural information was unavailable from perusal of
the website or that Zefer would have known that it was information subject to a
EF also claims that Gormley e-mailed Zefer the
"codes" identifying in computer shorthand the names of EF's gateway
and destination cities. These codes were used to direct the scraper tool to the
specific pages on EF's website that contained EF's pricing information. But,
again, it appears that the codes could be extracted more slowly by examining
EF's webpages manually,3 so it is far from clear that Zefer
would have had to know that they were confidential. The only information that
Zefer received that was described as confidential (passwords for tour-leader
access) apparently had no role in the scraper project.
EF's alternative ground for affirmance is the
rationale adopted by the district court for the preliminary injunction. That
court relied on its "reasonable expectations" test as a gloss on the
CFAA and then applied it to the facts of this case. Although we bypassed the
issue in EF I, the district court's rationale would embrace Zefer as readily as
Explorica itself. But the gloss presents a pure question of law to be reviewed de
novo and, on this issue, we differ with the district court.
The CFAA provision relied upon by the district
Whoever . . . knowingly and with
intent to defraud, accesses a protected computer without authorization, or
exceeds authorized access, and by means of such conduct furthers the intended
fraud and obtains anything of value, unless the object of the fraud and the
thing obtained consists only of the use of the computer and the value of such
use is not more than $ 5,000 in any 1-year period . . . shall be
punished as provided in subsection (c) of this section.
18 U.S.C. § 1030(a)(4). The statute defines
"exceeds authorized access" as "to access a computer with
authorization and to use such access to obtain or alter information in the
computer that the accesser is not entitled so to obtain or alter." Id.
§ 1030(e)(6). The CFAA furnishes a civil remedy for individuals who suffer
damages or loss as a result of a violation of the above section. Id.
At the outset, one might think that EF could have
difficulty in showing an intent to defraud. But Zefer did not brief the issue on
the original appeal before bankruptcy. In addition, there may be an argument
that the fraud requirement should not pertain to injunctive relief. Accordingly,
we bypass these matters and assume that the fraud requirement has been satisfied
or is not an obstacle to the injunction.
The issue, then, is whether use of the scraper
"exceed[ed] authorized access." A lack of authorization could be
established by an explicit statement on the website restricting access. (Whether
public policy might in turn limit certain restrictions is a separate issue.)
Many webpages contain lengthy limiting conditions, including limitations on the
use of scrapers.4 However,
at the time of Zefer's use of the scraper, EF had no such explicit prohibition
in place, although it may well use one now.
The district court thought that a lack of authorization
could also be inferred from the circumstances, using "reasonable
expectations" as the test; and it said that three such circumstances
comprised such a warning in this case: the copyright notice on EF's homepage
with a link directing users to contact the company with questions; EF's
provision to Zefer of confidential information obtained in breach of the
employee confidentiality agreements; and the fact that the website was
configured to allow ordinary visitors to the site to view only one page at a
We agree with the distrct court that lack of authorization
may be implicit, rather than explicit. After all, password protection itself
normally limits authorization by implication (and technology), even without
express terms. But we think that in general a reasonable expectations test is
not the proper gloss on subsection (a) (4) and we reject it. However useful a
reasonable expectations test might be in other contexts where there may be a
common understanding underpinning the notion, cf. Terry v. Ohio, 392 U.S. 1, 9
(1968) (Fourth Amendment), its use in this context is neither prescribed by the
statute nor prudentially sound.
Our basis for this view is not, as some have
urged, that there is a "presumption" of open access to Internet
information. The CFAA, after all, is primarily a statute imposing limits on
access and enhancing control by information providers. Instead, we think that
the public website provider can easily spell out explicitly what is forbidden
and, consonantly, that nothing justifies putting users at the mercy of a highly
imprecise, litigation-spawning standard like "reasonable expectations."
If EF wants to ban scrapers, let it say so on the webpage or a link clearly
marked as containing restrictions.
This case itself illustrates the flaws in the
"reasonable expectations" standard. Why should the copyright symbol,
which arguably does not protect the substantive information anyway, Feist
Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45 (1991), or the
provision of page-by-page access for that matter, be taken to suggest that
downloading information at higher speed is forbidden. EF could easily
include--indeed, by now probably has included--a sentence on its home page or in
warning and avoiding time-consuming litigation about its private, albeit "reasonable,"
intentions. Needless to say, Zefer can have been in no doubt that EF would
dislike the use of the scraper to construct a database for Explorica to undercut
EF's prices; but EF would equally have disliked the compilation of such a
database manually without the use of a scraper tool. EF did not purport to
exclude competitors from looking at its website and any such limitation would
raise serious public policy concerns. Cf. Food Lion, Inc. v. Capital Cities/ABC,
Inc., 194 F.3d 505, 516-18 (4th Cir. 1999); Desnick
v. Am. Broad. Cos., 44 F.3d 1345, 1351 (7th Cir. 1995).
Although we conclude that the district court's
rationale does not support an independent preliminary injunction against Zefer,
there is no apparent reason to vacate the present injunction "as against
Zefer." Despite being a party to the case, Zefer is not named in the
ordering language of the injunction; it is merely precluded, like anyone else
with notice, from acting in concert with, on behalf of, or at the direction of
Explorica to use the scraper to access EF's information.
Under the applicable rules and case law, an
injunction properly issued against a named party means that anyone else with
notice is precluded from acting to assist the enjoined party from violating the
decree or from doing so on behalf of that party. See
Fed. R. Civ. P. 65(d); G. & C. Merriam Co. v. Webster Dictionary Co.,
639 F.2d 29, 34-35 (1st Cir. 1980). There is no reason why Zefer should be freer
than any other third party who was never in this litigation to assist EF to
violate the injunction against it or to do so on EF's behalf or at its direction.
As we read the injunction, that is all that is forbidden.
It may still be of practical importance to Zefer
to have clarified the limited basis on which we uphold the injunction. And
nothing we have said would prevent EF, if it matters in continued litigation,
from seeking to show that Zefer did use confidential information, aware that it
was being supplied in violation of agreements made by former EF employees. It is
also of some use for future litigation among other litigants in this circuit to
indicate that, with rare exceptions, public website providers ought to say just
what non-password protected access they purport to forbid.
Lastly, Zefer has alleged that the First
Amendment would be offended if the statute were construed to forbid generally
the use of scrapers to collect otherwise available information where there was
no intent to defraud or harm the target website. Here, the preliminary
injunction is premised on EF's misuse of confidential information and Zefer thus
far is constrained only in helping a tentatively-identified wrongdoer in
exploiting that confidential information. Cf.
San Francisco Arts & Athletics,
Inc. v. U.S. Olympic Comm.,
483 U.S. 522, 541 (1987). None of Zefer's arguments address this narrowed
constraint or suggest to us that it is constitutionally doubtful.
The preliminary injunction is affirmed
on the limited basis set forth above and as construed by this court. Each side
shall bear its own costs on this appeal.
1. Of the Southern District of
New York, sitting by designation.
2. The individual defendants are
Olle Olsson, Peter Nilsson, Philip Gormley, Alexandra Bernadotte, Anders
Ericksson, Deborah Johnson, and Stefan Nilsson. We refer hereafter to Explorica
and the individual defendants collectively as "Explorica."
3. As an example, the website
address for an EF Tour to Paris and Geneva leaving from Boston is http://www.eftours.com/
public/browse/browse_detail.asp?CTID=PTG%20V&GW=BOS. Looking closely at the
website address, one can determine that the destination code for the Paris and
Geneva tour is PTG, while the gateway code for Boston is BOS.
4. For example, the "legal
notices" on one familiar website state that "you may print or download
one copy of the materials or content on this site on any single computer for
your personal, non-commercial use, provided you keep intact all copyright and
other proprietary notices. Systematic retrieval of data or other content from
this site to create or compile, directly or indirectly, a collection,
compilation, database or directory without written permission from America
Online is prohibited." AOL Anywhere Terms and Conditions of Use, at
http://www.aol.com/copyright.html (last visited Jan. 14, 2003).
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