Page 243 - 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

used for. This also accords with the GDPR, which grants data subjects (UGC creators) the
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right to transmit data from one platform to another, and restrict or oppose the processing
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of data by a data processor or controller. Focusing on UGC creators’ privacy, this approach
is concerned with the ‘data’ dimension of UGCs, a theme that other scholars have canvassed
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thoroughly and there is not much need to discuss in this thesis. Due to the openness and
flexibility of the general provision, more rules will be derived from judicial practice as it
evolves with business modes.
Although ToUs/ToSs cannot be deployed to limit scrapers’ access to UGC websites,
a UGC website can still use its ToU/ToS to set the conditions for scraping. For example,
Quora included the following provisions for web scrapers in its ToU: ‘If you operate a search
engine, web crawler, bot, scraping tool, data mining tool, bulk downloading tool, wget utility
or similar data gathering or extraction tool, you may access the Quora Platform, subject to
the following additional rules: (i) you must use a descriptive user agent header; (ii) you must
follow robots.txt at all times; (iii) your access must not adversely affect any aspect of the
Quora Platform’s functioning; and (iv) you must make it clear how to contact you, either
in your user agent string, or on your website if you have one’. YouTube has expressed its
intent to limit the speed of scrapers via ToS, stating that, ‘You agree not to use or launch any
automated system, including without limitation, “robots”, “spiders” or “offline readers” that
access the Service in a manner that sends more request messages to the YouTube servers in
a given period of time than a human can reasonably produce in the same period by using a
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conventional online Web browser’. The QVC v. Resultly case also implies that a plaintiff
website can restrict the speed of the scraper through ToU. A UGC platform can bring a
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claim for breach of contract against web scrapers who violate the conditions of web scraping
stated in ToU/ToS.
Although web scraping is regulated by tort law, UGC platforms could change this
through ex-ante contractual arrangements. Namely, a UGC platform could set a pre-
determined price for web scraping in its ToU/ToS and promise not to file suit against paid
web scrapers. However, the ToU/ToS should still respect the exceptions that apply to the
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web scraping of copyrighted UGC databases, which are discussed in Section 7.4.1. Web
212 GDPR, art 20.
213 GDPR, art 18 & 21.
214 Alberto De Franceschi (ed), European Contract Law and the Digital Single Market: The Implication of the Digital Revolution
(Intersentia, 2016); Víctor Rodríguez-Doncel and others, ‘Legal Aspects of Linked Data – The European Framework’ (2016)
32 Computer Law & Security Review 799; Paul De Hert and others, ‘The Right to Data Portability in the GDPR: Towards
User-Centric Interoperability of Digital Services’ (2018) 34 Computer Law & Security Review 193; Gianclaudio Malgieri,
‘User-Provided Personal Content’ in the EU: Digital Currency between Data Protection and Intellectual Property’ (2018) 32
International Review of Law, Computers & Technology 118.
215 Terms of Service in YouTube (n 17) art 4H.
216 QVC, Inc. v. Resultly, LLC, 159 F. Supp. 3d 576, 596 (E.D. Pa. 2016) (‘If [plaintiff] wants to ban scrapers, let it say so on the
webpage or a link clearly marked as containing restrictions’.)
217 See supra notes 202-211 and accompanying text.

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