Page 233 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

members. Neither would it be easy to distinguish users’ family members from web scrapers.
More importantly, the essence of code-based authorisation rests in the notion that anyone,
either a human or a scraper, can access information with a code. As web scraping is a faster
version of human browsing with fewer mistakes, but has no qualitative differences from
human browsing, a human browser provided with a code can access the same information
to the same extent as a web scraper provided with a code. If a human’s access to a system
with a shared password is considered authorised, so is a web scraper’s access. Therefore, I
endorse Judge Reinhardt’s dissenting opinion in Nosal II:

While the majority reads the statute to criminalise access by those
without ‘permission conferred by’ the system owner, it is also proper
(and in fact preferable) to read the text to criminalise access only by
those without ‘’permission conferred by’ either a legitimate account
holder or the system owner. 155

(4) Incompatibility of the CFAA and web scraping
The above account explains the fierce controversies that have arisen when the CFAA has
been applied to web scraping, which has made claims filed under the CFAA highly uncertain
and has even resulted in unreasonable decisions. Despite the efforts to restrict the scope of
the CFAA, using CFAA as an ‘expansive misappropriation statute’ still sends the wrong
signal that the law intends to ‘criminalise large groups of people who would have little
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reason to suspect they are committing a federal crime’. The debate has grown out of the
impossibility and unreasonableness of applying an outdated, criminal anti-‘hacking’ statute
to commercial web scraping practices that are commonplace and even desirable in the big
data era.
157
The CFAA has not only broadened the reach of criminal liability; it also has the potential
to override freedom of speech. Citing the US Supreme Court’s decision in Packingham v.
North Carolina, holding that ‘to foreclose access to social media altogether is to prevent
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the user from engaging in the legitimate exercise of First Amendment rights’, the
American Civil Liberties Union (ACLU) asserted that the access provision in the CFAA
is constitutionally overbroad and criminalises acts protected by the First Amendment.
159
A concern more related to the UGC database context is that the CFAA is likely to exert
prohibitive effects on innovation by encouraging data monopolies. In a world of algorithms
and artificial intelligence used for big data analysis, criminalising access to data connotes a

155 United States v. Nosal, 844 F.3d 1024, 1052 (9th Cir. 2016).
156 United States v. Nosal, 676 F.3d 854, 859 (9th Cir. 2012).
157 Williams, ‘Automation Is Not “Hacking”’ (n 118) 428.
158 Packingham v. North Carolina, 137 S.Ct. 1730, 1737 (2017).
159 Sandvig v. Sessions, 315 F. Supp. 3d 1, 13 (D.D.C. 2018).

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