Judiciary determination rules of data capture behavior from the perspective of Weibo unfair competition case
Author | Intellectual Property Center, Lawyer Wang Qionghua
summary of the case
A software joint stock company in Hunan (hereinafter referred to as "a software company") and Beijing Weimeng Chuangke Network Technology Co., Ltd. (hereinafter referred to as "Weimeng Chuangke Company") unfair competition dispute case [case number: (2019) Beijing 73 Minzhan 3789], Weimeng Chuangke Company is the operator of Sina Weibo, which not only provides network users with a social media platform based on user relationships, but also provides an open API for interfaces to third-party app software.
A software company provides Weibo data services to its users through the web version of the Eagle Strike system and the Android mobile phone Eagle Strike application, including obtaining, storing, displaying and analyzing Weibo platform data, and forming data analytics reports. Weimengchuangke Company believes that a software company's unauthorized acquisition, storage, display and use of Weibo platform data through illegal means constitutes unfair competition, so it sued the court, demanding that a software company immediately stop the unfair competition behavior involved.
A software company argued that the Eagle Strike system was a tool but did not actively capture the data of the Weibo platform, the data captured was the front-end data of the Weibo platform, and it was captured through the web crawler technology implementation without destroying the technical protection measures of the Weibo platform.
After hearing, the court held that Weibo platform data can be divided into public and non-public data. For public data, it can be obtained and reused through automated procedures such as web crawlers. For non-public data, it can only be obtained if legal and just means are taken. In this case, in the absence of a cooperative relationship between the parties and the absence of proof that the technical means used are legal and justifiable, it can be reasonably presumed that a software company has used technical means to destroy or bypass the access rights set by Weimengchuangke Company to obtain the non-public data of Weibo platform.
The acquisition, storage, display and use of Weibo platform data by a software company interfered with the normal operation of the Weibo platform, increased operating costs for Weimengchuang Company, and affected Weimengchuang Company's external authorization and acquisition of relevant profits, constituting an act of unfair competition as stipulated in Article
12of the Anti-Unfair Competition Law.
Therefore, the court ruled that the appellant was responsible for stopping the unfair competition.
The competition in the Internet industry is the competition of data, and the use of web crawlers to collect public information is an important source of enterprise data. Relevant data show that more than 50% of Internet traffic is actually contributed by crawlers; for some popular web pages, crawlers even account for more than 90% of total visits1。
Crawling technology can achieve efficient data collection and collection. Although web crawlers have been widely used, they must not be used without restrictions. In the Internet era where data is the core competitive resource, massive data means competitive advantage. Therefore, a large number of anti-crawling technologies and measures have begun to be applied. One of the most common anti-crawling methods is the robots protocol.
This article takes the above cases as a starting point, combined with other legal precedents in practice, to summarize and sort out the judicial determination rules of data capture behavior.
Understanding the Robots Agreement
Data "crawling" is mainly through web crawling technology implementation, that is, crawling crawling, referred to as "crawling". The application of crawling technology is extremely strong, which can break down the barriers of information exchange and provide users with massive target information resources. For example, one of the key technologies for search engines to obtain information is web crawling.2
In order to standardize the behavior of web crawlers, Dutch software engineer Martijn Koster drafted the specification of web crawlers - Robots Protocol in February 1994. The Robots Protocol, also known as the Robots Exclusion Protocol, is essentially a mechanism to solve the problem of communicating the wishes of crawlers and crawlers through computer programs.
3Our country's "Internet Search Engine Service Self-Regulation Convention"4The second paragraph of Article 7 stipulates that the robot protocol (robots protocol) refers to the use of the robots.txt file by the owner of an Internet site to provide information to network robots5(Web robots) A protocol for giving instructions to a website.
Legal Definition of Robots Agreement
The Robots protocol is a robots.txt file set by the website owner in the root directory of the website, with the purpose of telling web crawlers which pages can be crawled and which pages cannot be crawled. The Robots protocol is an unofficial standard that has not been filed by a standards organization. Although it is called a "protocol", it is not a true protocol. It is not protected by any official organization and is not mandatory. It is equivalent to a "gentleman's agreement".
But the Robots Agreement is not without legal protection, because the Robots Agreement is a commonly accepted ethical norm in the international Internet community.6
In our country, the "Internet Search Engine Service Self-discipline Convention" issued by the Internet Association defines the Robots Agreement as "internationally accepted industry practices and business rules". As an agreement between the same industry, the "Internet Search Engine Service Self-discipline Convention" has become an industry norm and has been brought into the field of vision of judges. In disputes related to the Robots Agreement, it has become the basis for determining whether it constitutes infringement or unfair competition.
Article 2, Paragraph 2, of the Anti-Unfair Competition Law of our country stipulates: "In production and business activities, business operators shall follow the principles of willingness, equality, fairness and good faith, and abide by the law and business ethics." Article 34 of the "Guidelines for the Hearing of Cases Involving Internet Intellectual Property Rights of the Beijing Higher People's Court" also has corresponding provisions: "When identifying generally accepted business ethics, the following contents may be comprehensively referred to: (2) Industry associations or self-regulatory organizations shall formulate professional norms or self-regulatory conventions based on industry characteristics and competition needs.
Therefore, the violation of the robots agreement may be identified as unfair competition behavior, will be regulated by our country's "Anti-Unfair Competition Law". It should be noted that not all violations of the robots agreement can be identified as unfair competition behavior, such as boycott, discrimination and other monopolistic behavior.
Crawling the rules of judicial determination of data impropriety
Article 12 of the Anti-Unfair Competition Law stipulates that business operators who use the Internet to engage in production and business activities shall abide by the provisions of this Law. Business operators shall not use technical means to impede or destroy the normal operation of network products or services lawfully provided by other business operators by influencing user choices or other means.
Data capture behavior is not naturally illegal, and the value evaluation of its legality usually comes from the protection or damage of the rights and interests touched by the behavior. The openness, originality, authorization, and legitimacy of the source of the captured data are often controversial factors in the evaluation of the legitimacy of the behavior.
1. It is improper to use technical means to destroy or bypass access rights to crawl non-public data.
From the perspective of balancing the interests of operators and the public interest, Internet data is divided into "public data" and "non-public data". Data without access rights are generally open to the public; data with access rights set through login rules or other measures should be non-public data.
When obtaining "non-public data", only technical means can be used to destroy or bypass access rights, and such behavior is obviously improper. To judge whether the behavior of grabbing "public data" is legitimate, the key is to see whether the means of grabbing data are legal and legitimate. Whether it is public data directly determines the legitimacy of the grabbing behavior to a certain extent.
Non-public information data usually involves personal privacy, trade secrets, national security secrets, etc. Its "non-public" nature means that the data holder's "not open" attitude towards the data, and the capture without the consent or authorization of the data holder is of course improper.7For example, in this case, the court held that it is necessary to distinguish and define the types of Weibo platform data before making a judgment on the nature of the accused behavior.
Although both parties use the concepts of "front-end data" and "back-end data" to distinguish Weibo platform data, there are significant differences in the understanding and definition of the two types of data, and from a technical point of view, the use of the aforementioned concepts to distinguish Weibo platform data may have overlapping scopes, or there may be problems with loose classification.
This court believes that from a normative perspective, it is more meaningful to distinguish between public and non-public data on the Weibo platform. For data that a technology company has not set access rights, it should be data that a technology company has made public to the public on the Weibo platform; for data that a technology company has set access rights through login rules or other measures, it should be non-public data in the Weibo platform.
Whether a software company's unauthorized capture constitutes unfair competition depends on whether the data it grabs is public data or non-public data on the Weibo platform.
The court found that the Weibo platform data captured by a software company without permission included non-public data that a technology company had set access rights to, and obviously could only use technical means to destroy or bypass the access rights set by a technology company.8
2. Crawling public data is not necessarily legitimate.
For public data, a technology company will not prevent users from browsing, receiving or even taking legal and legitimate channels for secondary use. Although technical means such as web crawlers are programs or scripts that automatically capture network data, if they comply with general technical rules, they can access public data without access rights.
Therefore, whether the public data of the aforementioned Weibo platform is obtained through user browsing or web crawling, the essence of the behavior is the same, and a technology company should not discriminate against the behavior of obtaining data through automated procedures such as user browsing and web crawling without reasonable reasons.
However, this paper argues that public data cannot be arbitrarily obtained. For example, in the case of Sina v. Superstar Rice Balls [ (2017) Beijing 0108 Minchu No. 24512], the People's Court of Haidian District, Beijing held that if the means by which others capture public data on online platforms are not legitimate, then the act of grabbing itself and its subsequent use cannot be justified; if the means by which others grab public data on online platforms are legitimate, it is necessary to combine whether the amount of data involved is sufficient, whether the scale is large enough to have data value, and whether the subsequent use of the accused infringer results in a substantive replacement of the platform for the captured data, and other factors to further judge the legitimacy of the act of grabbing public data .
3. The crawling behavior of cracking the encryption algorithm is improper.
In the case of the unfair competition dispute between "Kumike" and "Car Coming" [ (2017) Guangdong 03 Minchu No. 822], the defendant admitted to cracking the encryption algorithm to capture the plaintiff's data involved in the case. The Shenzhen Intermediate People's Court held that the way to obtain the data must be obtained in a legal way that does not violate the will of the software copyright owner, that is, it should be inquired by downloading the "Kumike" mobile APP or logging in to the website of Gumi Company, etc., rather than illegally obtaining it by using web crawler technology to enter the server background of Gumi Company without permission. Therefore, the defendant used the data of the plaintiff Gumi Company to be freely accessible to prove the legality of its acquisition method The claim cannot be established.
9It can be seen that the actor's data crawling behavior by cracking the encryption algorithm is improper.
4. Unauthorized crawling is improper.
On the one hand, "authorization" includes express authorization such as signing a data acquisition agreement, as well as implied authorization. For example, if a data crawler does not receive a prompt to prohibit access during the process of Crawling the data, a website with a Robots agreement, it is deemed to have obtained the authorization to crawl. On the other hand, "authorization" includes not only the authorization of the data platform, but also the authorization of the user. Especially when crawling data involving user personal information, whether to obtain the authorization of the user is one of the important bases for evaluating the legitimacy of the crawling behavior10。
In the case of Sina v. Maimai, Maimai seized the professional and educational information of Sina Weibo users without the authorization of the Weibo platform and without the permission of Maimai's unregistered users. The court ultimately ruled that the capture of non-Maimai user information was improper, and established that the capture of public user data must be subject to the triple authorization principle of "user authorization + platform authorization + user authorization".
The essence of the principle of triple authorization is the interpretation of the basic principle of the current law "no use without consent", that is, as stipulated in Article 41 of the Cyber Security Law: Network operators who collect and use personal information shall follow the principles of legality, legitimacy and necessity, make public the rules of collection and use, clearly indicate the purpose, method and scope of collection and use of information, and obtain the consent of the collected person.
Network operators shall not collect personal information unrelated to the services they provide, nor shall they collect or use personal information in violation of the provisions of laws and administrative regulations and the agreements of both parties, and shall handle the personal information they hold in accordance with the provisions of laws and administrative regulations and the agreements with users.
Zhang Li: "Data Governance and Data Security", People's Post and Telecommunications Publishing House, 2019 edition, Chapter 4.4.
Li Huimin, Sun Jialiang: On the legal boundaries of crawler data capture, Electronic Intellectual Property, No. 12, 2018.
3 Zhang Li: "Data Governance and Data Security", People's Post and Telecommunications Publishing House, 2019 Edition, Chapter 4.4.
Issued by the Internet Society of China, the effectiveness level is stipulated by the industry.
Web robots, also known as web visitors, crawlers, and spider programs, are programs that automatically crawl the web.
6 Liu Jifeng and Wang Junlin: "Competition Law: Rules and Cases" Volume 1, Law Press, 2016 Edition, Chapter 1.
7 Liu Jifeng, Zhang Ya: "Determination of Illegality of Data Capture from the Perspective of Anti-Unfair Competition Law", Journal of Northwestern Polytechnical University (Social Science Edition), No. 4, 2021.
8 (2019) Beijing 73 civil court verdict No. 3789.
9 (2017) Guangdong 03 Minchu No. 822 civil court verdict.
10 Liu Jifeng, Zhang Ya: "Determination of Illegality of Data Capture from the Perspective of Anti-Unfair Competition Law", Journal of Northwestern Polytechnical University (Social Science Edition), No. 4, 2021.
About the Author
Lawyer Wang Qionghua
, Partner Lawyer
Secretary General, Copyright Law Professional Committee of Shenzhen Law Association
Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Committee
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Intellectual property (criminal-civil cross), corporate compliance
Corporate legal counsel, civil and commercial dispute resolution
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