Evan Schuman's StorefrontBacktalk

Take, for example, Ronald Kahlow, a software engineer from Reston, Va., who in 1997 walked into a Best Buy store that advertised it had the “lowest prices.” In the days before smartphones, Kahlow typed the prices into a laptop computer strapped to his waist. He was asked to leave the store, as a clerk removed the price tags so he couldn’t record them. When Kahlow returned the next day with a pad and paper, he was followed through the store and then arrested for trespass. Although he was acquitted in Fairfax County Court, the case illustrates the problem with capturing public pricing information in a way or for a reason that the retailer doesn’t want.

A retailer, as the owner of property, can put conditions on your use or presence at the store. Sort of: “If you want to shop here, you must agree not to capture the prices for commercial purposes.” If you violate these terms, you are trespassing, and can be arrested. Just as a club or concert arena may have a “no cameras” policy, a store could have a “no recording pricing” or “no sharing pricing” policy.

But to prosecute for trespass, you would have to show that the policy was well known, well advertised and that the customer was told their actions were unauthorized and could lead to their being banished. Not very likely. Indeed, many stores (including Best Buy) routinely send out their own “spies” to capture competitor’s pricing data. What Amazon did was to enlist its customers’ help. So, in essence, if there was a “trespass” it wasn’t by Amazon but by its customers. Pretty clever.

Now, if a brick-and-mortar store were to do the same thing to Amazon (either directly, by “bot” or by crowdsourcing), there would be an entirely different result. Access to Amazon’s Web site (which contains its pricing data) is restricted by its Terms of Use, which states:

Amazon grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Amazon. This license does not include any resale or commercial use of this site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Amazon. (Emphasis added.)

Sauce for the goose?