Page 238 - 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

appropriation of the news because of its investment of effort and money to produce ‘hot
185
news’. UGC platforms not only satisfy the investment standard but also the ‘hot news’
requirement because UGC is time-intensive and attracts the most attention within the first
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few weeks or even the first few days of publication such as in social media posts. Hence,
theoretically, UGC platforms qualify to file misappropriation claims.
Nevertheless, the misappropriation doctrine is a low profile legal tool in practice. The
first reason is that although the misappropriation doctrine originated in INS v. AP as federal
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common law, it has been based on state law since 1938. Because of the preemption
provision introduced in 1976, stating that copyright law preempts state law that addresses
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disputes in the same field, the viability of the misappropriation doctrine has been uncertain.
What is more, under the US legal system, web scraping disputes have mostly been addressed
by trespass law, such as the CFAA and trespass to chattels. This has left little space for
misappropriation claims.
The elements required to establish misappropriation are more demanding than those
needed to establish trespass to chattels. The crux of a trespass claim is the intention to
trespass and the possibility of interference. Although in the Hamidi case, actual damage
was a necessary element to succeed in a trespass to chattels claim, subsequent cases have
appeared to lower the requirement for the magnitude of harm. To prevail on a claim under
competition law, the plaintiff must prove that the defendant was a competitor and caused
commercial damage. For example, under Texas law, the elements of unfair competition in
a misappropriation claim include the following: (i) the creation by plaintiff of a product
through extensive time, labour, skill and money; (ii) the use of that product by the defendant
in competition with plaintiff, giving the defendant a special competitive advantage because
he was burdened with little or none of the expenses incurred by the plaintiff in the creating
the product; and (iii) commercial damage to the plaintiff. 189
7.3.6 Contract

According to the European Commission’s survey, contracts are the most widespread
form of database protection. In the context of web scraping, the contractual remedy
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usually refers to ToUs/ToSs, which are the least expansive tools that UGC websites can rely
on. Many UGC platforms, including without limitation, Facebook, LinkedIn, Twitter, eBay,
Craigslist, TripAdvisor, Expedia, IMDb and Yelp have explicitly opposed scraping and bots

185 International News Service v. Associated Press, 248 U.S. 215, 219 (1918).
186 Jessica Williams, ‘User Generated Content Marketing Campaigns: Best Examples From 2018’ (Wayin, 18 December 2018)
<https://www.wayin.com/blog/user-generated-content-campaigns-2018/> accessed 18 May 2019.
187 Erie Railroad Co. v. Tompkins, 304 U.S. 64, 66 (1938).
188 17 U.S. Code § 301.
189 DHI Group, Inc. v. Kent, 2017 U.S. Dist. LEXIS 177535, *; 124 U.S.P.Q.2D (BNA) 1635 [*28].
190 European Commission, Evaluation of Directive 96/9/EC on the Legal Protection of Databases (n 75) 31.

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