Eric Goldman

For those who are interested in this type of subject matter, I can highly recommend Eric Goldman's blog (the primary source for this article), at https://blog.ericgoldman.org/ Goldman was one of the first "internet lawyers" in Silicon Valley in the 90s, and his blog is a treasure trove of interesting recent court cases on marketing and the internet.

The unexpected copyright component is known as the "RAM Copy Doctrine". If I recall correctly, MAI v. Peak [0] was the case that established that, and it has been referenced in web scraping cases many times since. RAM Copy Doctrine is the digital equivalent of stating that a new infringing copy of the work is created every time someone looks at something without a license from the rightsholder, since it creates a "fixed" copy in the retina. Effectively, this neuters Feist v. Rural Telephone [1] for online purposes, because you can't use a computer to "look at" the source material in order to reference it's non-copyrightable facts. The computer formatting that encapsulates unoriginal, Feist-style data almost automatically meets the standard of originality necessary to constitute a copyrightable work (e.g., document structure like XML tags or JSON layout), so under the RAM Copy Doctrine, just loading that small shell into RAM for any purpose, even if it's just to read out non-copyrightable facts, may well constitute infringement. This argument has worked against many scrapers. And of course, under the CFAA, speaking to their servers without explicit permission is of dubious legality, and continuing to speak to their servers after being told to stop is certainly illegal. In most cases, both of these arguments are brought and both arguments are considered persuasive. Eric Goldman's blog [2] usually does a decent job following cases that involve the CFAA and/or web scraping,…

With no sense of irony, this blog is written on a platform that allows some Nazis, algorithmically promotes publishers, allows comments, and is thus only financially viable because of Section 230. If you actually want to understand something about the decision, I highly recommend Eric Goldman's blog post: https://blog.ericgoldman.org/archives/2024/08/bonkers-opinion-repeals-…

This is the best summary of the current state of scraping laws - https://blog.ericgoldman.org/archives/2022/12/hello-youve-been-referre… It's complicated is the short answer.

By the way, one of the colleagues thanked in this piece is Eric Goldman, who has written the highly recommended paper titled "Search Engine Bias and the Demise of Search Engine Utopianism" [1]. He also frequently writes at [2] [1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=893892 [2] https://blog.ericgoldman.org/archives/author/eric-goldman [edit] While I'm at it, one of the best summaries of the whole neutrality debate is from Laura Granka [3], and Goldman has his own summary here [4] [3] Granka, L. A. (2010). The Politics of Search: A Decade Retrospective. The Information Society, 26(5), 364–374. https://doi.org/10.1080/01972243.2010.511560 [4] Goldman, E. (2011). Revisiting Search Engine Bias (SSRN Scholarly Paper ID 1860402). Social Science Research Network. https://papers.ssrn.com/abstract=1860402

This blog post is an excellent summary, and covers what was actually decided and what is still unknown: https://blog.ericgoldman.org/archives/2019/09/ninth-circuit-says-linke…

This is a pretty good legal analysis of the first amendment issues this raises. https://blog.ericgoldman.org/archives/2018/03/why-fostas-restriction-o… I'd point out that merely operating an interactive service provider with the intent to promote or facilitate prostitution is criminalized... if you work at a company that might get sued, you probably want to start looking for a new job. Conspiring or attempting as well... if you talk about with intent or try to figure out a way to facilitate prostitution, that's ostensibly illegal too. That said, the chilling effect of removing immunity under 230 is the greater concern, as it's more likely to withstand the first amendment challenge, from what I can tell. Of course that assumes that there would be such a challenge, from someone.

This seems really lame on Google's part, kind of "we don't make enough money on this stuff to care" lame. Which I don't believe for a moment. Maybe its time to get Eric Goldman (http://blog.ericgoldman.org/) involved, he has a tone of expertise in this particular corner of the law.

The Oatmeal's lawyer, Venkat Balasubramani [1], is a regular contributor to Santa Clara law professor Eric Goldman's Technology & Marketing Law blog [2]. [1] https://twitter.com/#!/VBalasubramani [2] http://blog.ericgoldman.org/

I find Venkat Balasubramani's post linked to at the end of that article worth reading in full: http://blog.ericgoldman.org/archives/2011/11/court_oks_priva.htm

There's a ton of hype against social media. I very strongly pegged this as Yet Another Diatribe Against Social Media. As more anger from the malcontents. Because what scares me the most is that broadly we seem sort of complicit in these monopolies. We seem to be staying on networks we know are mind of shit. Nothing really holds us here... except the network externality, that this is where everyone already is. And that alone bespeaks a real & significant cause worth asking for change over. I have strong doubts about government regulation of social media systems (I much prefer bluesky's layers of moderation ideas). But the network lock in seems direly bad for all, seems to lock us into a bad system. Kanter's write-up talks about the critical importance of competition. And yes, that does seem key to me too. Maybe I might take a note from Web Scraping for Me, But Not for Thee, a guest post by Kieran McCarthy. https://blog.ericgoldman.org/archives/2023/08/web-scraping-for-me-but-… . The idea is that many services including a number of the now dominant ones rose to power by adversarial interoperability, by interfacing with other sites. But now the laws have been rewritten to protect & defend against interoperation. The new laws revoked the ideas of Carterphone vs AT&T, give the right to the neo AT&T's to deny anyone else access to the network except via approved tools. We can't use new clients, we can't connect to other systems, we can't detect…

Agree with everything you said, but I want to dig into why I don't find the critique compelling. In short, I see a need for us all to inherently distrust anything single thing we read -- everything needs to be verified and checked out across multiple (hopefully diverse) sources of information before it can be considered "truth" in any sense. I do develop trust in certain sources over time, but meta-sources like an AI or a search engine don't get this treatment because their scope is too broad. As an example, I tend to trust folks like Fabien Sanglard[0], Eric Goldman[1], and Adam Langley[2]. Example: over on the Morrowind subreddit a few years ago, an artist had been painting landscapes of the game "Morrowind" (oil on canvas, IIRC), and when he went to print them as posters to sell to fans, the site he wanted to print them on warned him that printing his own paintings of vistas from Morrowind was copyright infringement (it's not). He came to the Morrowind subreddit for help because he'd been actively misled. Sites like plagiarism.org[3] confidently say false things: > But can words and ideas really be stolen? > According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property and is protected by copyright laws, just like original inventions. Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file). This is confidently incorrect in a couple…

There's an analysis at: https://blog.ericgoldman.org/archives/2022/02/a-glimmer-of-hope-that-t… > The cap likely will encourage aggressive copyright enforcers to stay in federal court and skip the CCB altogether... > Based on this analysis, the caps (10 proceedings/year for copyright owners or 40/yr for law firms) seem to deter many potential CCB users. If the plaintiffs’ lawyers aren’t steering clients towards it, and if both the firms and copyright owners see more value in consolidating cases in federal court, the CCB will most likely cater to the copyright owner who doesn’t have a lawyer and views an occasional small claims proceeding as its best hope; and possibly the rare circumstances where a CCB proceeding will be more lucrative than a federal court proceeding (like where the owner has an unregistered copyright and would prefer the statutory damages available only in the CCB). If these become the main CCB use cases, I imagine there will be dozens of CCB cases in a year, not thousands or even hundreds, and the CCB will not be an especially important adjudicatory venue.

Try contacting Eric Goldman http://blog.ericgoldman.org/

A pretty good technical analysis of this decision is found here: http://blog.ericgoldman.org/archives/2011/07/judge_ware_goog.htm. Professor Eric Goldman adds his comments to the end of the linked piece, including the following: "I continue to insist that the ECPA is one of the worst-drafted statutes of all time. . . . [N]o one knows what the statute really means . . . The class action plaintiffs have gone crazy with the statute, and due to its drafting deficiencies, the plaintiffs claims are rarely clearly wrong on the surface. The result has been a huge tax on innovation with no commensurate social benefits; only the private benefits of a few privacy class action lawyers getting fat and happy while feasting on Silicon Valley companies." The statute was passed in 1986 and is badly out of date. Judge Ware, who is a very good judge, is left to struggle with trying to determine what Congress intended when it enacted the statute 25 years ago as its text might apply to technologies that did not exist at the time. This is a difficult task at best and is not likely to lead to consistent results among the courts. Congress therefore needs to act to fix this and to set the right policy choices based on the technology we have today.

Here is a critique of this case which I came across the other day, and may be of interest to you: https://blog.ericgoldman.org/archives/2026/03/ninth-circuit-allows-tos…

> The courts say. Do you have an example of a court saying that violating robots.txt violates an existing law? In Ziff Davis v. OpenAI [1], the District Court for the Southern District of New York found that violating robots.txt does not violate DMCA section 1201(a) (formally 17 U.S. Code § 1201(a), which prohibits circumvention of technological protection measures of copyrighted content [2]). 1201(a) is the legal basis of Google's lawsuit announced in TFA. It's my understanding that robots.txt started as a socially-enforced rule and that it remains legally voluntary. [1] https://blog.ericgoldman.org/archives/2025/12/are-robots-txt-instructi… [2] https://www.law.cornell.edu/uscode/text/17/1201

Eric Goldman echoed it here as well in this section: "The Implications of Trump’s Election for Section 230" in his 2024 internet year in review. [0] [0] https://blog.ericgoldman.org/archives/2025/01/2024-internet-law-year-i… He says Section 230 is on the chopping and extinction block in 2025 and he would be shocked if it made it to 2026.

Good analysis: https://blog.ericgoldman.org/archives/2024/03/buffalos-mass-murder-lea…

Interesting. You appear to be a lawyer or in that realm, so I'm curious your take on it - though I also understand if you don't want to publicly make statements or anything. i.e is the common take that people have of "scraping is legal after HiQ vs LinkedIn" just completely wrong? Edit: oh, I didn't realize you wrote quite a bit here: https://blog.ericgoldman.org/archives/2022/12/hello-youve-been-referre…

Again, this is old news and wrong. https://blog.ericgoldman.org/archives/2022/12/hello-youve-been-referre…

here is the update... https://blog.ericgoldman.org/archives/2022/08/op-ed-the-plan-to-blow-u…

You’re required under the ADA to make “reasonable accommodations” for people with disabilities. This has been tested numerous times in court, most recently against Dominos: https://blog.ericgoldman.org/archives/2021/06/domino-pizzas-website-vi…

Thanks for those citations. Weirdly, another 512(f) case was just won: https://blog.ericgoldman.org/archives/2021/12/a-512f-plaintiff-wins-at…

Through [1] I found this article [2], and it seems even if you pay people for content (Blumenthal v. Drudge, page 7; AOL was paying somebody for writing articles and somebody sued both that person and AOL for defamation) you're still explicitly immune under Section 230. (I'm not a lawyer, I find this kind of confusing sometimes.) [1] https://blog.ericgoldman.org/archives/2020/07/want-to-learn-more-about… [2] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025943

There are a mountain of lawsuits with Yelp over fake reviews. This is a decent post, as it lists the outcome of a long-standing lawsuit (Yelp won) but also links out to several other lawsuits filed over the years about fake reviews on the site. https://blog.ericgoldman.org/archives/2020/03/yelp-finally-defeats-a-f…

This? https://blog.ericgoldman.org/archives/2020/03/yelp-finally-defeats-a-f…

The actual ruling[0] is a little harder to digest, but there's useful analysis by Eric Goldman[1] [0]: https://www.caselaw.nsw.gov.au/decision/1742d2614c447c83bbc6d457 [1]: https://blog.ericgoldman.org/archives/2020/08/australian-court-says-us…

https://blog.ericgoldman.org/archives/2020/01/new-civil-fosta-lawsuits… Several examples here.

So, this seems to be the gist of the article. > [I]t’s not possible to identify [child exploitation material] without also having the ability to identify any and all other types of material — like a journalist communicating with a source, an activist sharing a controversial opinion or a doctor trying to raise the alarm about the coronavirus. Other people suspect that the real goal of the bill is to force facebook/WhatsApp et al to do away with end-to-end encryption, which would be the only way the companies could police the material (and AG Barr has "expressed his desire for this outcome": https://blog.ericgoldman.org/archives/2020/03/the-earn-it-act-partiall… )