"Screen scrapers" are programs that simulate a user's interaction with a Web site in order to access information stored on that site. Some screen scraper programs are designed to extract substantial portions of data stored on a Web site, and may be used for that purpose by competitors of the Web site owner, without the authorization of the owner. Their use in such circumstances is controversial, relatively few judicial opinions have dealt with the subject, and the law on their use in such circumstances remains unclear, even following two related opinions by the Court of Appeals for the First Circuit.

In January 2003 the appeals court held that the "reasonable expectations" of an ordinary user is not the proper basis for determining whether the use of a screen scraper "exceeds authorized access" to a Web site under the Computer Fraud and Abuse Act (CFAA). In EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58 (1st Cir. 2003), the court held that a lack of authorization to access a Web site may be implicit, but rejected the "reasonable expectations" test as "highly imprecise" and "litigation spawning." The appeals court noted that the Web site did not expressly prohibit use of a "screen scraper" program to extract pricing data, and exhorted Web site owners "to say just what non-password protected access they purport to forbid" on their sites. The appeals court upheld the lower court's issuance of a preliminary injunction against the use of the screen scraper program, however, based on narrow grounds related to an earlier injunction issued against other defendants.

The full text of this article is available at http://www.brownraysman.com/pubs/articles/pdf/NYLJ-6-9-03.pdf.