Using Scraper to Harvest Records Isn’t Fraudulent Access Under CFAA–Fidlar v. LPS

18 01 2017

Fidlar works with counties to digitize and index land records. It also makes available a software client (Laredo) that allows end users to access these records. Billing is handled by the counties, and counties have monthly access plans. The counties also provide accounts (and passwords) to end users. The plans are usually time-based but include separate “print fees” so that people who print a record for off-line viewing have to pay additional fees. Fidlar’s EULA did not impose any specific restrictions on use of Laredo. As the court notes, the EULA says a user may “use . . . any portion of the software for any purpose”. [I didn’t double check this but it seems odd for a EULA to contain broadly permissive language like this.]

LPS wanted to aggregate the data underlying the county records, so it built a harvester to mimic the calls Laredo would send to the database. Using this process, while logged in using county-provided passwords, LPS downloaded a massive quantity of county records. (The precise relationship between being logged in and accessing the records is not clear factually.) It then sent these records offshore for processing and extracted the underlying data. A county alerted Fidlar to the fact that LPS was paying fees but not logging any time. It sued LPS under the Computer Fraud and Abuse Act and state anti-hacking law. The district court dismissed Fidlar’s claims at summary judgment. (Blog post on the district court ruling here: “Company That Facilitates Digital Access to Public Records Uses CFAA to Block Scraper”.) The district court case involved a host of issues, including alleged contractual interference by Fidlar (who contacted the counties to try to disrupt LPS’s access), defamation claims, the public records status of the data, and whether Fidlar and the counties could gate the data in this manner consistent with public records statute. These are all interesting issues in their own right, but Fidlar’s appeal only focuses on the CFAA issues.



Case citation: Fidlar Techs v. LPS Real Estate Data Solutions, Inc., No. 15-1830 (7th Cir. Jan. 21, 2016) [pdf]

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