Page 239 - 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

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in their ToUs/ToSs. Etsy even included an ethical provision: ‘Do not Steal Our Stuff’.
Nevertheless, as discussed in Section 7.3.4, only a code-based authorisation system can
effectively prohibit others’ from obtaining access; written terms in ToUs/ToSs cannot.
Some UGC platforms do not prohibit web scraping in general but provide some
conditions that a web scraper must obey, such as the speed and the purpose of scraping.
Violating these restrictions would not invoke liability under the CFAA, but it could constitute
a breach of contract. Providing sufficient notice to users is one of the essential elements
a ToU/ToS must include to bind the platform users, as investigated in Section 6.3.1. It is
noteworthy that courts have been more willing to hold that a UGC platform has fulfilled the
notice requirement when the user is a corporation with a similar ToU/ToS than when the user
is an individual. In this sense, UGC platforms have been more likely to use ToUs/ToSs to
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bind web scrapers that are competitive websites. Nevertheless, even if the ToU/ToS is valid
and enforceable, it has remained unclear just how far the ToU/ToS can reach to restrict web
scraping.
The courts have been divided on whether ToUs/ToSs can override the exceptions under
copyright law or the sui generis right to protection. Except for a few countries (i.e. Belgium,
Portugal and Denmark), most courts in EU member states have held that the freedom to
contract outweighs the legal exceptions, and they have allowed websites’ ToUs/ToSs to
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deviate from the statutory exceptions. Although Article 15 of the EU Database Directive
states that ‘any contractual provision contrary to Articles 6 (1) and 8 shall be null and

191 See supra note 59.
192 Terms of Use in Etsy, art 8 <https://www.etsy.com/legal/terms-of-use/> accessed 14 April 2019.
193 Register.com v. Verio, 356 F.3d 393, 401 (2d Cir. 2004) (citing Dkt. #13 at pp. 4-5, 9-10; Dkt. #30 at pp. 12-13) (the Second
Circuit Court held that the defendant had constructive notice of the browse-wrap ToU because the defendant has used
a similar browse-wrap agreement in his own website) Ticketmaster; DHI group v. Kent, No. CV H-16-1670, 2017 WL
4837730, at *11 (S.D. Tex. Oct. 26, 2017); Southwest Airlines Co. v. Farechase, Inc. No. 3:06-CV-0891-B, 2007 U.S. Dist.
LEXIS 96230, 2007 WL 4823761, at *4 (N.D. Tex. Sept. 12, 2007); Craigslist v. 3Taps, 942 F.Supp.2d 962, 971 (N.D.
Cal. August 16, 2013). However, the difference between individual users and company users in terms of the notice element
seems to be cut down in recent years with individuals have been accustomed to visiting UGCs platforms and enjoying
online service in their daily life. For example, in Meyer v. Uber, Uber claims that a user should have actual or constructive
knowledge of ToU upon registration because when a user clicks the ‘Register’ button, the screen underneath states ‘By
creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY’. The plaintiff, Meyer, argued that
he does not get valid notice about TOU because he ‘does not recall seeing or following the hyperlink to the TOU” when he
registered his Uber account with a smartphone though he remembers “entering his contact information and credit card details
before registering’. Meyer v. Uber Techs., Inc. 868 F.3d 66, 71 (2d Cir. 2017). However, the Second Circuit Court upheld the
enforceability of ToU, on the ground that “The registration process clearly contemplated some sort of continuing relationship
between the putative user and Uber, one that would require some terms and conditions.” Meyer v. Uber Techs., Inc. 868 F.3d
66, 80 (2d Cir. 2017). The court highlights that ‘when considering the perspective of a reasonable smartphone user, we need
not presume that the user has never before encountered an app or entered into a contract using a smartphone. Moreover,
a reasonably prudent smartphone user knows that text that is highlighted in blue and underlined is hyperlinked to another
webpage where additional information will be found’. Meyer v. Uber Techs., Inc. 868 F.3d 66, 77-78 (2d Cir. 2017).
194 Belgium and Portugal (where exceptions are generally mandatory law and cannot be derogated from through contracts) and
Denmark (where exceptions can only be derogated from in negotiated agreements). Maarten Truyens and Patrick Van Eecke,
‘Legal Aspects of Text Mining’ (2014) 30 Computer Law & Security Review 153, 161

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