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EF Cultural Travel v. Explorica

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Citation Edit

EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001) (full-text).

Factual Background Edit

Both parties offer vacation packages and tour groups to overseas destinations. Explorica was founded by ex-EF employees who created their business as a direct competitor to EF. To be competitive, Explorica downloaded all of the information that was available to the public on EF's website. Using this information, which included scheduling and price rates, Explorica was able to undercut EF. The amount of information used by Explorica from EF's website was "60,000 lines of data, the equivalent of eight telephone directories.[1] EF sued Explorica on various causes of action, including trespass to chattels and violation of the federal Computer Fraud and Abuse Act.

Appellate Court Proceedings Edit

The primary issue before the court was the question of authorization. EF's website was available to the public, and access was free. All Explorica did was look at, and take information from, each web page that EF made available for users to look at and take information from. Explorica accomplished this by using a scraper.[2] There was no clickwrap license, so the court had no writing to show that EF did not intend for the website to be used just as Explorica used it.

Instead, the court looked to implied authorization under the Computer Fraud and Abuse Act. The Act makes it illegal to "[access] a protected computer without authorization or [to an extent that] exceeds authorized access . . . and [obtain] anything of value."[3]

The court held that EF's implied authorization to website users did not extend to the use of all of the information contained on the website. The court found that Explorica's conduct "reek[ed] of use — and, indeed, abuse — of proprietary information."[4]

References Edit

  1. Id. at 580.
  2. Id. at 577-78.
  3. 18 U.S.C. §1030(a)(4).
  4. 274 F.3d at 583.

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