Running or Defending a Data Scraping Program: A Practitioner's Guide to Terms, the CFAA, and Contract Claims
By Casey Scott McKay ·
An operational guide for both chairs in a scraping dispute, built around a source-by-source analysis rather than a single program policy - because four sources produce four different answers and a uniform policy is the failure mode. The early stages classify the material, test whether a gate existed, and determine whether a contract was formed and is enforceable, in the order that actually decides these cases. A dedicated stage covers the output analysis, which carries the statutory damages and is routinely run last or not at all. The site-operator stages build the contractual and technical position that makes a claim available, including the API that converts an adversarial relationship into a contractual one. Later stages cover the provenance record, the cease-and-desist exchange, the preliminary injunction, and the licensing alternative that resolves most of these more cheaply than the analysis costs.
IP and Technology > Information Technology | Guide | Published 27 May 2025 - Updated 8 March 2026 | Casey Scott McKay - marksy.us
Summary. An operational guide for both chairs in a scraping dispute, built around a source-by-source analysis rather than a single program policy — because four sources produce four different answers and a uniform policy is the failure mode. The early stages classify the material, test whether a gate existed, and determine whether a contract was formed and is enforceable, in the order that actually decides these cases. A dedicated stage covers the output analysis, which carries the statutory damages and is routinely run last or not at all. The site-operator stages build the contractual and technical position that makes a claim available, including the API that converts an adversarial relationship into a contractual one. Later stages cover the provenance record, the cease-and-desist exchange, the preliminary injunction, and the licensing alternative that resolves most of these more cheaply than the analysis costs.
Keywords: source by source analysis · material classification · gate analysis van buren · hiq public data · browsewrap enforceability · clickwrap assent · account creation terms · api terms as defense · robots txt and rate limits · technical measure circumvention 1201 · trespass to chattels server load · personal data stripping at ingestion · biometric exposure from images · provenance record · retention and minimization · cease and desist response · preliminary injunction scraping · licensing alternative · seeded records evidence · defending a scraping claim
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