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The Pot Calling the Glass House an Ignorant...

Posted by Colin Kingsbury

Oct 6, 2006 2:55:00 PM

NB about the title: It's an inside joke. Explanation, if you need it.

John Sumser's first and second articles on "Job Jacking" provoked thecontroversy one would expect. While John's articles as usual raise some interesting ideas, there are some serious deficiencies in the debate as a result of how he framed it.

In his original article, he compares vertical-search job scrapers to a landscaping service which cuts your lawn in the middle of the night unless you take affirmative steps to prevent it. Since we can all agree that would be absurd and wrong, he reasons, why do we tolerate the antics of Indeed.com?

There are a lot of problems with John's example. The first is that an opt-out lawnmowing service would clearly violate the very simple and ancient law of criminal trespass. The law treats information goods differently from physical goods because they are essentially different. If a staffing agency came along and took the Help Wanted sign out of a store's window and hung it in their own, we don't ned to get into (relatively) arcane areas of law like copyright, because what they're doing is stealing, plain and simple.

Now, what if I put up a help-wanted sign and someone comes along and writes that down in a notebook and uses the information to compile a directory of companies looking for employees? They are not denying me the use of my sign or my ability to recruit employees via my own preferred means. Legally, the employer would have to at the very least post a "no copying this sign allowed" notice in the window in order to have any grounds on which to make a claim against the directory publisher.

Even then, they may be on shaky ground because copyright law does not give the producer of the information unlimited rights and control over its usage. You cannot for instance write a blog and say, "No quoting allowed unless you agree with me." This is part of what is referred to as the Fair Use Doctrine and it is an actively-evolving area of the law. Among other things, the US Copyright office writes that:
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
While the copy in the job ad may be expression, one could just as soon argue that the core details--the job title, the employer's name, etc., are factual information that may be freely reported on by virtue of the employer making them publicly available.

If there is any ambiguity in this issue, it has to do with whether obedience to a site's robots.txt file is sufficient to prove compliance with copyright. As it happens, it's not entirely ambiguous as a Nevada state court ruled early this year that it was OK in a case involving Google's caching. While it will take more cases to establish the precedent firmly, it does serve to suggest that the argument is not legally absurd.

Potentially the most interesting aspect of this is whether today's common practice of forbidding the use of automated scraping tools in website TOS will be legally upheld. Traditionally these have been supported on the basis that spiders and robots can create a massive load on the server being scraped. But, if you could prove that the spider was equivalent to a single average visitor, then what grounds would you have to forbid it? My sense is that there are a lot more spiders and robots in our future.

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