Evan Schuman's StorefrontBacktalk

Sauce for the goose? The Amazon site makes it a violation of the Terms of Use not only for a commercial entity to scour the site for pricing but for a consumer to do so, either for commercial purposes or to use that information “for the benefit of another merchant.” There have been numerous cases where competitors have violated such Terms of Use for the purpose of learning what their competitors are charging, and they have been criminally prosecuted.

For example, in a 2001 case in Boston federal court, the owner of a teen travel Web site was civilly sued under a criminal statute for accessing his competitor’s public Web site (using a scraping program) to capture pricing data. Numerous other cases have held that violating a company’s Terms of Use constitutes “exceeding authorized access” to that company’s computer system and, therefore, constitutes both civil “trespass to chattels” and criminal trespass for which the user may be arrested.

Indeed, just last month in testimony before Congress, the Department of Justice’s Richard Downing urged lawmakers to retain the provision in federal law that has been interpreted to prosecute such TOS rule breakers. Dowling noted:

“Businesses should have confidence that they can allow customers to access certain information on the business’s servers, such as information about their own orders and customer information, but that customers who intentionally exceed those limitations and obtain access to the business’s proprietary information and the information of other customers can be prosecuted.”

So here is how the law currently stands. If a brick-and-mortar store proprietor, either directly or by bot or through its customers, violates a Web site’s Terms of Use, it can be sued or prosecuted for trespass and possibly for tortuous interference with a business relationship, even though the information gained is public pricing data.

This is where crowdsourcing might help the brick-and-mortar folks. Using a “bot” to collect online data may violate the Terms of Service and, therefore, may subject the user to civil or criminal liability. Same thing may be true if, say, Sears hired legions of people to surf Amazon’s Web site for competitive pricing data. But when I walked into Sears last week to buy a TV, there was no problem with me making “personal” use of Sears’ computers to search for lower prices at Amazon.

It’s not clear whether legions of users enlisted by a retailer to get information constitutes a “personal” or a “commercial” use of the computer. It would likely depend on the relationship between the crowd and the company. In any event, having engaged in the same conduct in the past, Amazon likely opens itself up to similar concerted activity against its own prices and services.

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.