Evan Schuman's StorefrontBacktalk

Walmart has similar language, noting:

“All materials that are part of this Site (collectively, the “Contents”) are intended solely for personal, non-commercial use. You may download or copy the Contents and other downloadable materials displayed on the Site for your personal use only. You agree, further, not to use or attempt to use any

engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search this Site other than the search engine and search agents available from Walmart.com on this Site and other than generally available third party web browsers (e.g., Netscape Navigator or Microsoft Explorer).”

And Target itself notes:

“YOU MAY NOT: a. Make any commercial use of the Site or its Content, including making any collection or use of any product listings, descriptions, prices, or images; b. download, copy, or transmit any Content for the benefit of any other merchant; c. use or attempt to use any engine, software, tool, agent, data, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Site other than the search engine and search agents provided by Target or generally publicly available browsers.”

Case law is rife with companies suing others for trespass for doing exactly what price-comparison firms do now. For example, in 2001, a travel agency successfully sued a rival for looking at its prices (with screen-scraper software) to underbid it, under the theory that this activity was a trespass even though there was no Terms of Use that prohibited it. eBay successfully sued rival Bidder’s Edge for having a bot collect auction information in violation of eBay’s Terms of Use. Similarly, Ticketmaster successfully sued a rival under trespass law for scraping data about tickets from its site.

This type of “civil trespass” or “trespass to chattels [things]” allows the recovery of damages. But, remember, trespass is also a crime.

Courts have frequently held that if you exceed the scope of your authorization to use a computer (or access a Web site), then you are violating the computer crime statute. Thus, an employee who looks at corporate data for a bad purpose may violate the computer crime statute by “trespassing.” A woman who provides inaccurate information to a social networking site to get access to the site violates the statute if the site requires accurate information, and she can be criminally prosecuted for doing so.

So when a Web-based merchant sets up shop on the Internet, the merchant—through its Terms of Use—establishes what is “authorized” use of the site (shop till you drop) and what is “unauthorized” use of the site (don’t compete with me!). The unauthorized use can result in civil litigation or criminal prosecution.

All of which takes us back to companies grabbing this data for—and from—retailers. If they are getting the data, they are selling it in violation of the Terms of Use of any of the Web sites and they run the risk of both civil and criminal trespass liability. And those who knowingly buy the data from these companies run the risk of conspiracy or aiding and abetting liability. If you ask the data analysis company, “Where did this data come from?” and it says, “You don’t want to know,” maybe you do want to know.

But it’s not all that simple. You see, these Terms of Use and Terms of Service may not even be enforceable at all. Trespass law, in both the physical and the virtual worlds, is complicated. In the Best Buy case, even if the company had a policy of not permitting price checking, it’s not clear that simply by price checking the customer was trespassing. His violation was in not stopping when he was asked and, thereby, theoretically trespassing. Trespass law also includes the concept of an “implied license”—that is, you can’t say, “Anyone can do this” but then also say, “But not if I don’t want you to.” It is possible that a court would look at the Amazon language and say, “Hey, either this is a public Web site or it’s not.” Of course, it is possible that a court would look at the Amazon language and also say, “Hey, you can make any rules you want, it’s your Web site.” That’s what makes the Web so much fun.

All of this is to say that in collecting and analyzing what you think is “public” data, you need to make sure that it is, in fact, truly public—and that you have the right to.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.