Page 235 - 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

to chattels claim. 169
3) Trespass law or anti-unfair competition law
As open access and password sharing are dominant norms on the Web, access is
presumably authorised. Any inquiry into the legitimacy of web scraping should focus on the
use of the scraped data, which runs afoul of competition law. For instance, if a web scraper
obtains passwords from the scraped platform’s users to access and use the UGC database
in a way that competes with the scraped platform, it is better to examine the fairness of the
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specific use than to illegalise password sharing. After all, what the scraped platform is
concerned with is how the scraped UGC database is used, rather than who scraped it or how
it was scraped.
Competition law has two major forms: anti-unfair competition law and anti-trust law.
Some jurisdictions have combined these two laws due to their joint purpose of ‘ensuring
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the efficient operation of [the] market economy’. They are two different approaches to
the same goal. Anti-unfair competition law focuses on fair competition between individual
competitors by preventing unfair practices that are confusing, misleading, discrediting or
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free-riding, such as nuisance advertising. Antitrust law is concerned more with individual
competitors’ freedom to undertake business activities. It seeks to deter restraints on trade
and abuses of economic power, such as discrimination, boycotting, dumping and predatory
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pricing. In the context of the web scraping of UGC databases, it has often been the
scraped website that brings an anti-unfair competition claim and the scraper who brings the
antitrust claim against the scraped website’s restriction on web scraping, as in the case of
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hiQ v. LinkedIn. To establish liability under the antitrust law, a scraper must prove that the
scraped company (i) has monopoly power in one market, (ii) has unfairly leveraged its power
in an anticompetitive or exclusionary manner, and (iii) is likely to monopolise a second
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market. Antitrust claims in the context of web scraping are not substantively different from
the antitrust claims in other contexts. Hence, the competition law discussed next focuses on
anti-unfair competition claims that pay attention to the fairness of web scraping.

7.3.5 Anti-unfair competition law

1) Anti-unfair competition law in China
The anti-unfair competition law is the primary or even the sole recourse against web

169 Craigslist Inc. v. 3Taps Inc., 942 F. Supp. 2d 962, 980 (N.D. Cal. 2013).
170 Section 7.3.4.1.3.
171 WIPO, Protection against Unfair Competition: Analysis of the Present World Situation (1994) 12.
172 Ibid.
173 Ibid 67.
174 hiQ Labs, Inc. v. LinkedIn Corp., 273 F. Supp. 3d 1099, 1103-1104 (N.D. Cal. 2017).
175 Ibid 1117-1118; Amercian Bar Association, Antitrust Law Developments (6 edn, Amer Bar Assn 2007) 305

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