Event-planning website Cvent claimed that competitor Eventbrite stole its intellectual property by using “scraping” technology to duplicate information found on the Cvent site about hotels, restaurants, bars, and meeting venues in various cities and use that information on the Eventbrite site.  Most of the information was publicly available elsewhere, but by scraping the data from the Cvent site Eventbrite could save a lot of time and effort in setting up its competitive site.  Cvent sued and asserted copyright infringement, certain trademark claims and state law claims, and violation of the federal Computer Fraud and Abuse Act, which prohibits “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer.”

Because the data in question was also publicly available, Cvent had to show the access was unauthorized so it tried to rely on its website terms of use.  The terms stated “no competitors or future competitors are permitted access to our site or information, and any such access by third parties is unauthorized”, but there was no click-through, which would have served as manifestation of user asset to the terms before accessing the site, and there were no measures taken to otherwise screen competitors from the info.  And the court found that the terms of use were not sufficiently prominently displayed: the terms were accessed only from a tiny link at the bottom of the home page, which a user reaches after scolling down, along with links to various other sections of the site.  This doesn’t provide meaningful protection.  Note to websites out there:  if you are going to rely on terms of use, feature them prominently, make them easy to find, scroll through and read, and use click-throughs to require users to affirmatively agree to be bound by the terms.