Compulife: Datascraping and Trade Secret Law (RECORDING)
A decision this spring by the Eleventh Circuit appears to offer publishers of data a novel way to pursue website scrapers by using trade secret law. The decision is thus also an important possible threat to companies that depend on others’ data as fodder for their artificial intelligence solutions. Panelists include a top IP lawyer at a global tech company active in AI and two litigators.
In Compulife v. Newman, the Eleventh Circuit overturned a lower court’s conclusion that the public availability of information the defendants scraped from a website precluded a claim for trade secret misappropriation under Florida’s Uniform Trade Secrets Act. In reversing the lower court’s dismissal of the trade secret claims, the appeals court stressed that “the simple fact that the quotes taken were publicly available does not automatically resolve the question in the defendants’ favor.” This raised the eyebrows of some experts, pointing to “reasonable efforts” as the sina qua non of trade secrecy. The appellate court also delved into the definition of “improper means” under trade secret law, specifically raising the question of whether using a bot to collect masses of data meets that criterion.
The panel will discuss:
- Whether this case offers website publishers a new arrow in the quiver to combat unwanted website scrapers beyond “typical” claims under the Computer Fraud and Abuse Act (CFAA) and a contract claim for breach of the underlying terms of service
- Other important cases involving datascraping including Van Buren v. U.S (recently granted certoriari before the U.S. Supreme Court), HiQ v. LinkedIn (cert petition pending), and Digidrill v. Petrolink (5th Circ., July 2020).
Fish & Richardson, PC
is a principal attorney at Fish & Richardson. He provides legal services to clients in matters relating to business litigation, patent litigation, and trade secret litigation. David’s clients benefit from his in-depth knowledge of technologies used in e-commerce and web site systems, computer network architecture and computer software.
IP Law Counsel
is an IP law counsel at IBM, where he focuses on drafting and negotiating patent licenses and assignment agreements. In his 15 years at IBM, he has worked on a variety of IP matters, including patent procurement, litigation, IP transactional agreements, and trade-secret related issues. Before joining IBM, Ken was a law clerk to Chief Judge Glenn Archer at the U.S. Court of Appeals for Federal Circuit and an Associate Solicitor in the USPTO. Ken is the chair of the IPO’s Trade Secrets committee.
James Pooley, PLC
founded his own firm in Silicon Valley in 2015, after serving for five years as the Deputy Director General of the World Intellectual Property Organization. His legal treatise, “Trade Secrets,” is updated semi-annually. He acts as co-counsel in trade secret and patent litigation, and acts as consultant regarding trade secret and cybersecurity risks. Earlier he was an IP litigator and partner at Morrison & Foerster and Milbank, among other firms. He is also the author of Secrets: Managing Information Assets in the Age of Cyberespionage.