>In the Craigslist vs 3Taps, the damages were non-existant but they still won because of the C&D letters.

(Technically they settled.)

Read up on that case and you'll see that even absent a C&D, the judge reasoned that Craiglist's IP ban against 3Taps was a separate incident of affirmatively communicating its intention that 3Taps refrain from accessing the site:

> The calculus is different where a user is altogether banned from accessing a website.
> The banned user has to follow only one, clear rule: do not access the website. The notice
> issue becomes limited to how clearly the website owner communicates the banning. Here,
> Craigslist affirmatively communicated its decision to revoke 3Taps’ access through its ceaseand-desist
> letter and IP blocking efforts. 3Taps never suggests that those measures did not
> put 3Taps on notice that Craigslist had banned 3Taps; indeed, 3Taps had to circumvent
> Craigslist’s IP blocking measures to continue scraping, so it indisputably knew that Craigslist
> did not want it accessing the website at all.

The judge continues to suggest that using proxies at all is atypical and may demonstrate an intention to violate the CFAA. Ruling at http://www.volokh.com/wp-content/uploads/2013/08/Order-Denyi... .

>So if a website sends you a letter to stop, do not continue scraping them. Until that happens, it's fair game. ToS is not legally binding. Those two cases were the result of damage caused to the website.

No, that's incorrect. You can believe this all you want, and I truly hope that it all goes well for you. It's totally possible that you will never piss off someone who has the resources to file a lawsuit over it. But you should know that you can be bound by a browsewrap agreement (and that it's quite easy to be bound by a clickwrap agreement, which, in practice, may not be much different and which scrapers may automatically follow (e.g., a link that says "click here to enter and agree")).

It's really going to come down to the judge's belief that the notification is adequately prominent and that a "reasonably prudent user" would be aware of the stipulations.

Quoth from Nguyen v. Barnes and Noble (citations removed):

> where, as here, there is no evidence that the website
> user had actual knowledge of the agreement, the validity of
> the browsewrap agreement turns on whether the website puts
> a reasonably prudent user on inquiry notice of the terms of
> the contract. [...] Whether a user has inquiry notice of a
> browsewrap agreement, in turn, depends
> on the design and content of the website and the agreement’s
> webpage. Where the link
> to a website’s terms of use is buried at the bottom of the page
> or tucked away in obscure corners of the website where users
> are unlikely to see it, courts have refused to enforce the
> browsewrap agreement. [...] On the other hand, where the website contains an
> explicit textual notice that continued use will act as a
> manifestation of the user’s intent to be bound, courts have
> been more amenable to enforcing browsewrap agreements.
> [...] In short, the conspicuousness and
> placement of the “Terms of Use” hyperlink, other notices
> given to users of the terms of use, and the website’s general
> design all contribute to whether a reasonably prudent user
> would have inquiry notice of a browsewrap agreement.

Full decision at https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/201... .

>STOP. SPREADING. FUD. cookiecaper. All of your comments are the same unsound legal advice yet Mozenda, Import.io, and a whole bunch of tools & service providers are humming along just fine.

I'm not giving any legal advice as I'm not a lawyer. For the third or fourth time here, this is all according to my layman's understanding. It's based on things I learned that time I had to close my business or face a lawsuit from a massive company over just such issues.

It's crucial for companies that provide scraping services to be aware of these issues and I know of at least one such company who is aware of them and who takes several precautions to provide some distance from potential legal liability, though they are still not 100% out of the woods. As is usually required in entrepreneurship, they're taking a calculated risk. Should someone wage a legal challenge against their activity, they have millions of dollars in the bank from investors who presumably have researched this and are willing to accept the cost of the potential legal liability.

I'm not saying that people shouldn't make businesses that depend on scraping data. I just think they should know what they're getting into before they do so.

You are correct that some businesses have been able to engage in such activities without being sued out of existence up to this point. Unfortunately, that doesn't mean that others will be as lucky.

I fully agree that anyone who is seriously interested/concerned about this should ask a lawyer. I certainly did. Their answers were not good news for me. Maybe they will be for you.