Michael A. Carrier, “Only ‘Scraping’ the Surface: The Copyright Hole in the FTC’s Google Settlement

Working Abstract

Each generation, a new-economy case tests the ability of antitrust law to respond to an innovative technology. Most recently, the Federal Trade Commission (FTC) spent 19 months investigating Google. The FTC decided not to challenge the conduct at the heart of its scrutiny, relating to the company’s search algorithm. It nonetheless required that Google not misappropriate, or “scrape,” material from rivals’ websites.

Upon first glance, it may sound ominous to scrape rivals’ content. But this conduct cannot be considered apart from the context of U.S. copyright law. In failing to consider whether the scraped reviews (for services like restaurants) were copyrighted, whether sites such as Yelp owned any such copyrights, and whether a fair use defense could be invoked, the FTC waded into the complex intersection of antitrust and intellectual property (IP) without the copyright section of the “instruction manual.” And while allowed use under the IP laws does not automatically prevent antitrust scrutiny, at a minimum it needs to be carefully considered in determining whether the conduct violates antitrust law.

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