EF Cultural Travel BV v. Zefer Corporation
315 F.3d 58
In the United States Court of Appeals for the First Circuit
Case Number 01-2001
Before Chief Judge Boudin, Senior Circuit Judge Cyr, and Circuit Judge Torruella
Decided on January 29, 2003

Relevancy of the Case: Whether using a scraper tool to collect information from a website results in a violation of CFAA?

Statutes and Provisions Involved

• The Copyright Act, 17 U.S.C. § 101
• The Computer Fraud and Abuse Act, 18 U.S.C. § 1030

Relevant Facts of the Case

• The defendant, Zefer, seeks a review of the preliminary injunction order prohibiting it from using a scraper tool to collect pricing information from the plaintiff’s website.
• The plaintiff’s website permits a visitor to visit the site, search its tour database, and view the prices for tours. In June 2000, Explorica, a competitor of the plaintiff, hired the defendant to build a scraper tool to collect the prices from the plaintiff’s website and download them into an Excel spreadsheet.
• Thereafter, Explorica used this information to set its tour prices, undercutting the plaintiff’s prices by an average of 5%.
• Thereafter, the plaintiff sued Explorica, along with the defendant, before the District Court. It sought an injunction on the grounds that the scraper tool violated the Copyright Act and CFAA.
• The District Court refused to grant summary judgment on the plaintiff’s copyright claim, it granted a preliminary injunction against all defendants based on one provision of CFAA.
• The defendants had appealed; however, the proceedings against Zefer were automatically stayed as it filed for bankruptcy. Explorica’s appeal went forward, and a panel of this court upheld the preliminary injunction against it.
• In this re-activated appeal, the defendant questions whether the preliminary injunction is proper as to Zefer.

Prominent Arguments by the Counsels

• The plaintiff’s counsel argued that the court’s decision in the Explorica appeal was decisive. The defendant must have known that Explorica had obtained the information improperly.

Opinion of the Bench

• The other defendants had used confidential information to facilitate obtaining the plaintiff’s data. The plaintiff’s former employees had created Explorica. Some of them had signed confidential agreements. Zefer’s position is quite different from that of Explorica or the plaintiff’s former employees.
• The court noted that the plaintiff’s former VP and Explorica’s CIO emailed the details about how information was available on the plaintiff’s website.
• Lack of authorisation may be implicit, rather than explicit. However, a reasonable expectations test is not the proper gloss in this situation.
• While the District Court’s rationale does not support an independent preliminary injunction against Zefer, there is no apparent reason to vacate the present injunction.

Final Decision

• The court affirmed the preliminary injunction, with parties to bear their own costs.