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  • Writer's pictureAshmi Subair

Web scraping e-commerce websites - Top five legal battles and learnings



Top Five Legal Battles and Learnings


Web scraping is a common practice in e-commerce, serving as an essential strategy for businesses to stay ahead. It's a method they use to collect data from other websites, giving them insights into market trends, competitor prices, and customer preferences. But this handy tool is not without its share of hurdles. It treads a fine line between competitive intelligence and legal infringement, often sparking debates on ethics and legality.


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This blog will analyze legal conflicts and ethical dilemmas related to web scraping. We will discuss essential cases, arguments from both sides and court decisions. We aim to explain the legal framework governing web scraping. By looking at each case in detail, you will better understand the legal and ethical issues in e-commerce web scraping. We are here to help you understand the complexities, ensuring your business uses web scraping effectively and ethically within the law.


The Scrape for Sneakers - Nike vs. Resellers 


The Scrape for Sneakers - Nike vs. Resellers

Since 2016, a fierce battle has been raging between sneaker giant Nike and resellers who use automated bots powered by web scraping. These bots equipped with advanced scraping techniques quickly grab limited-edition releases, leaving genuine consumers disappointed and without a purchase. However, this is not just a dispute over sought-after sneakers but a conflict over legal boundaries and ethical concerns related to web scraping and copyright laws.


Impacts and Consequences


Limited Edition Releases: Bots, armed with scraping tech, can instantly scan and purchase large quantities of coveted sneakers before human consumers even have a chance. This frustrates genuine fans and often resorts to inflated resale prices, harming Nike's brand image and consumer trust. Additionally, limited access breeds frustration, leading to boycotts or legislative action.


Consumer Access: The dominance of bots creates an unfair barrier to entry for ordinary consumers, hindering their ability to access and purchase desired sneakers at retail prices. This disrupts the natural flow of supply and demand, potentially harming competition and innovation within the market. Additionally, it leads to feelings of exclusion and disenfranchisement among consumers, ultimately damaging the overall customer experience.


Fair Competition: Using bots disrupts the natural flow of supply and demand, creating an uneven playing field. Resellers using scraping gain an unfair advantage, potentially harming competition and innovation within the market. This legal grey area can lead to confusion and instability for resellers and consumers.


Key Legal Arguments in the Case 


Intellectual Property Rights

Nike argues that bots infringe on their intellectual property, bypassing normal purchase channels and potentially violating website terms of service. They may claim bots scrape product data unfairly, giving resellers an edge.


Fair Use and Open Markets

  Resellers often counter-arguments of fair use, stating they merely use publicly available information. They may argue that open markets benefit from competition and that bots automate what some consumers do manually.


This case highlights the importance of intellectual property, fair use, and the ethics of web scraping in e-commerce. The outcome will likely affect how sneakers are released, consumer access, and fair competition in the market.


Breaking Down Nguyen v. Barnes & Noble


Breaking Down Nguyen v. Barnes & Noble


Imagine gathering online info for research, only to be sued for "stealing" it! That happened to Nguyen in 2014 when he used tools to collect product details and reviews from Barnes & Noble's website through web scraping. 


Hidden Agreement Blues


Nguyen argued he shouldn't be bound by their terms of service, including an arbitration clause (meaning disputes go outside court) because he never saw them! They were hidden in a "browsewrap agreement" – a tiny hyperlink, not a clear pop-up you can't miss.


The Big Question


So, the court had to decide: does clicking a button count as agreeing to hidden, essential terms like arbitration, even if you never read them? The court ruled against Barnes & Noble because the hidden agreement didn't give enough notice. Clicking a button without knowing the terms, especially for something big like arbitration, wasn't considered informed consent. This means Nguyen wasn't breaking any rules.


This case sets a significant precedent: businesses can't hide crucial terms and expect a click for consent. They need to be clear and upfront about what data they collect, and how they use it and get your consent openly, not hidden away.


More Than Web Scraping


While this case involved web scraping, it affects everyone online. It reminds us that

Transparency matters: Businesses should be clear about what they do with their data.

Consent should be meaningful: You should know what you agree to before clicking "Yes."

Looking beyond the case, it prompts questions about data ownership and user rights online. Emphasizing responsible data practices, businesses should prioritize user privacy, stay informed about evolving laws, and seek legal advice to ensure compliance.


Data Delimma of Zappos vs. PriceGrabber 


Data Delimma of Zappos vs. PriceGrabber

Public data, private use?


In 2006, a significant case in the e-commerce industry involved using public data for commerce - Zappos vs. PriceGrabber. This case initiated a legal debate that remains important today, raising questions about fair use, data ownership, and the boundaries of web scraping.


The Zappos-PriceGrabber tug-of-war



PriceGrabber, a price comparison website used web scraping technology to collect product data and prices from Zappos' website. This information was then displayed on their platform, allowing users to compare prices across different retailers. Zappos, however, saw this as an unauthorized use of their data and filed a lawsuit claiming copyright infringement.


Fair use of trial and court verdict



The case focused on the fair use concept. PriceGrabber said their data scraping and display were fair use because they served a transformative purpose (price comparison) and did not cause significant harm to Zappos. On the other hand, Zappos argued that their data was valuable intellectual property and PriceGrabber's actions were harmful to their business.


The court decided in favour of PriceGrabber, saying that their use of the data was fair. They considered factors like the small amount of data used, the innovative nature of the comparison service, and the minimal harm to Zappos.


Ongoing controversy and unanswered questions


While the Zappos-PriceGrabber case established a precedent, it didn't offer a definitive answer to the complex questions surrounding data scraping and fair use. The ruling left several uncertainties, including.

  • Defining the boundaries of "transformative use" in web scraping.

  • Determining the extent of data scraping that constitutes fair use.

  • Balancing the interests of data owners with the freedom of information and innovation.


Why understanding the law matters


Today, we must pay attention to data scraping and fair use, especially with laws like GDPR becoming more complex. For e-commerce businesses, knowing about data ownership and fair use is essential to stay out of legal trouble and uphold ethical standards online.


eBay v. Bidder's Edge (2000) - A Case in Web Scraping Legality


eBay v. Bidder's Edge (2000) - A Case in Web Scraping Legality

In 2000, eBay, the reigning online auction giant, clashed with Bidder's Edge, a website aggregating listings from various platforms, including eBay. Their legal battle became a case shaping the legality of web scraping. 


The Controversy


Bidder's Edge used automated programs, nicknamed "spiders," to crawl eBay's website and collect data on listings, bids, and seller information. eBay saw this as a violation on several fronts

  1. Overburdening their servers: The constant crawling significantly strained their infrastructure.

  2. Violating terms of service: Users, even automated ones were required to agree to these terms.

  3. Misappropriating data: Bidder's Edge presented the scraped data as their own, potentially diluting eBay's brand identity. On the other hand, they argued their actions were legitimate citing.

  4. Similarity to search engines: Just like search engines index websites, they collect publicly available data.

  5. Fair use protection: Borrowing some data, like a recipe snippet, was acceptable under fair use principles.

  6. Competitive advantage: They offered a valuable service by comparing auctions and didn't aim to harm eBay.


The Court Verdict and Outcome


The court delivered a mixed verdict, siding with eBay on one essential claim. They acknowledged "trespass to chattels" finding Bidder's Edge's excessive scraping placed an unreasonable burden on eBay's servers similar to trespassing on physical property. However, the court dismissed claims of misleading advertising, trademark dilution and unfair competition.


This case didn't offer a definitive answer on the legality of web scraping in all situations. Instead, it established crucial precedents. Web scraping can be deemed illegal if it imposes an undue burden on a website's resources. At the same time, the overall legality depends on factors like the type of data accessed intent, and impact. This case continues to inform legal discussions surrounding web scraping, highlighting the ongoing tension between open access to information and website owners' rights.


Deceptive Designs - FTC vs. Fashion Nova 


Deceptive Designs - FTC vs. Fashion Nova 

Scraping for success, but at what cost?


The Fashion Nova case sheds light on the ethical side of web scraping in e-commerce. In 2023, the Federal Trade Commission (FTC) took action against the popular online retailer for misleading consumers with deceptive marketing practices directly linked to their use of scraped data. This case serves as a stark reminder of the importance of transparency and ethical use of scraped data in the digital space.


Fashion Nova's scraping and deceptive tactics


The FTC alleged that Fashion Nova used web scraping technology to collect data on product reviews, ratings, and user comments from various websites. However, instead of using this data for legitimate insights, they manipulated it to create fake positive reviews and inflate their product ratings. These fabricated reviews were displayed on their website, misleading consumers and influencing purchasing decisions.

Transparency and ethics are essential.

This case highlights the critical role of transparency and ethical practices in web scraping. Businesses engaging in data collection, whether through scraping or other means, must operate with explicit consent, responsible usage, and truthful representation. Consumers deserve to know where their data comes from and how it is used, significantly when it impacts their decision-making.


The FTC's action and its implications


Fashion Nova eventually settled with the FTC, agreeing to pay a hefty fine and implement compliance measures. This action sends a strong message to other businesses that deceptive practices involving scraped data will not be tolerated. Additionally, it underscores the FTC's commitment to protecting consumers from unfair and misleading marketing.


Responsible marketing and consumer protection


Looking forward, businesses must prioritize responsible marketing practices that respect consumer trust and comply with relevant regulations. This involves

  • Transparency in data collection practices.

  • Ethical use of scraped data, avoiding manipulation and deception.

  • Respecting user consent and privacy rights.

  • Adherence to consumer protection laws and regulations.

E-commerce companies can ethically and responsibly use data-driven insights to build trust and promote sustainable growth.


Web scraping can be powerful for gathering data, but it has both positive and negative effects, raising considerations related to legal advice and privacy law. It can benefit resellers unfairly, manipulate reviews, and blur the lines of data ownership. However, it can also drive innovation and make price comparisons easier. It is essential to use it responsibly and respect privacy. Examples like counterfeit sneaker bots and deceptive marketing show different perspectives on web scraping and its impact on e-commerce. Businesses must prioritize ethical behaviour and obtain consent to handle data responsibly.


Datahut can assist you in getting the information you need while following the rules and respecting user privacy. Our experts are here to guide and help your online business grow using scraping. Contact us today.

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