Making Room For Big Data: Web Scraping and an Affirmative Right to Access Publicly Available Information Online

This paper will explore the legality of web scraping through the lens of recent litigation between web scraper hiQ Labs and the online professional networking platform, LinkedIn. First, the paper will study the background of web scraping litigation, some challenges courts face in issuing consistent verdicts, and the most common claims companies make against web scrapers. Then the paper will address three of the most common claims and identify court motivations and limitations within the doctrines. The first claims are those arising from the federal Computer Fraud and Abuse Act (CFAA). Next, the paper will investigate copyright claims and defenses that may be applicable to web scrapers. Finally, it will discuss the state law claims of trespass to chattels and of breach of contract. Considering these doctrines, this paper will propose a legal protection for web scrapers accessing public information online to draw a comprehensive limitation on web scraping litigation, in order to protect online activity in light of First Amendment protections, anti-competition concerns, and online public policy. With such a protection in place, this paper will argue how the web as a crucible of knowledge will be preserved