Hi, and welcome back to Legal Geek. This week, we cover a case in Illinois from November suggested by subreddit user Gavreh that shows how internet technologies can sometimes force the spotlight on lesser known laws and methods of trying to enforce intellectual property.
The case is titled Alan Ross Machinery v. Machinio Corp., and the allegedly infringing conduct of Machinio included using web scraping to extract sales listings from Alan Ross's website and then copied those sales listings on their own site. The copied material into the Machinio website was mostly factual and did not include specific branding of Alan Ross, so traditional enforcement of a copyright or a trademark was not really available in this case. However, Alan Ross generated a couple of lesser-known claims under the copyright and trademark laws to try and defend their rights against this practice of web scraping.
The first claim was for violation of the Copyright Act's prohibition against distributing false copyright management information, or removing or altering such CMI. CMI is generally defined as identifying information placed on a notice of copyright or on a work, and is most often seen online as visible watermarks on images or copyright information in metadata. This provision came into effect as a part of the DMCA in the late 90s. If a defendant knowingly removes or alters such CMI when distributing the underlying work, so as to disguise the potential copyright infringement, the defendant can be liable for thousands of dollars of damages under this legal claim, which is separate and independent from a traditional copyright infringement claim. Furthermore, the copyright doesn't even need to be registered with the U.S. Copyright Office to sue on this CMI ground, which is the opposite of traditional copyright infringement lawsuits.
Alan Ross failed to prove violation of this law according to the court. As to distribution of false CMI, which was alleged to be done by Machinio at a blanket copyright notice found in the terms of use of Machinio's website, the court ruled that this separate terms website is not conveyed with the works on other websites and thus cannot be false CMI connected to the works. As to the claim that Machinio removed the CMI in the form of copyright notice found at the bottom of Alan Ross's webpages, the court ruled this notice covered Alan Ross's website itself and not the particular sales listings, so just copying the facts in the form of sales listings did not allow for a claim of removal of CMI from a copyrighted work.
The second claim was for false designation of origin under the Lanham Act, which is the trademark law of the U.S.. False designation of origin exists when a manufacturer or seller lies about the country or origin or maker of its products. This is kind of analogous to CMI removal claims, just in the branding or source identifier context.
Unfortunately for Alan Ross, there was a prior Supreme Court case called Dastar which ruled that these claims attach only to the producer of tangible goods offered for sale, not to authors of any idea or concept embodied in those goods. In this case, the copied elements of sales listings were deemed to be ideas or communications embodied in the sales listings, as the actual website listings of Machinio were made by the source of those products. In other words, Machinio produced website listings using someone else's content, and these website listings did not falsely designate Alan Ross as the source of the website listings, so no breaking of the laws just like the prior Dastar decision. This is a nuanced application of that prior case, but it makes sense.
The Bottom Line is, Alan Ross Machinery tried to come up with some creative ways under the U.S. laws to enforce their rights and stop the practice of web scraping done by Machinio on the sales listings from the Alan Ross website, but these lesser-known enforcement methods did not work in this case. However, the lesson to be learned is that there's usually some way to try and stop copying of content even if the traditional methods of IP enforcement do not work, and good legal counsel can open doors not often known to exist in these fields. Especially in cutting edge fields like internet commerce with relatively newer practices like web scraping.
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