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).