Closed hugoroy closed 8 years ago
Thanks a million for this explanation.
On screen scraping, what I found most interesting is the difference between the European Court of Justice and the German Supreme Court (which lies 250km away, in Karlsruhe) of April 2014. In I ZR 224/12, German judges go much further and stated that a portal that advertises a product to a mass audience cannot complain when its assets are scraped.
It seems that the ECJ keeps the door open for claimants in a way the German judges did not and that it remains a bad ruling for journalists.
Well, contract law in Germany as ruled by the German Supreme Court is still relevant. The ECJ is only making the interpretation of the database directive, so whether the door is open or closed in the field of German contract law isn't up to them. See paragraph 44 of the ECJ ruling:
However, as regards a database to which Directive 96/9 is not applicable, its author [sic] is not eligible for the system of legal protection instituted by that directive, so that he may claim protection for his database only on the basis of the applicable national law.
But anyway, I'm arguing over a footnote :-) nice article
Comment to: http://blog.nkb.fr/datajournalism-rulings/
You wrote:
and…
While the first paragraph quoted above is correct, it is overlooking one important issue: whether the terms of use are enforceable against the scraper in the first place.
The EUCJ ruling does not “require to ask for permission before scraping data”, it only says that you can, by contract, limit what others can do with this data. But remember that for a contract to exist, you need to have agreement.
In case of public websites: you do not need to “agree” with anything to read public content (or to scrape public data). The mere existence of “ToS” somewhere on a website does not necessarily mean there's a contract.
A French case covered this already and helps to illustrate the point http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000026573989: