Who Owns Public Crime Data?
from the a-case-that-has-it-all dept
We were recently tipped off to a case in the federal courts that raises all sorts of legal issues about some questionable interpretations of the law — many of which we’ve discussed here recently. It involves a Utah company, named Public Engines, suing a competitor, named Report See. Public Engines, it appears, contracts with various police departments around the country to get crime data from them, and then they put that data online in various formats. Its main business tends to be working with law enforcement and providing them software and services around that data. But, it also presents the data publicly on the site CrimeReports.com. Apparently, law enforcement agencies pay Public Engines to provide data to the site. Public Engines claims it does work on that data, to “de-identify” it and make it appear in a more user-friendly format. As the company notes, it does not add any editorial on the site and does not include any advertising or seek any additional business from users. The service is basically provided totally free of all that — but the company makes money from the law enforcement agencies, who pay to take part and to use Public Engines’ software.
Along comes Report See. It operates a similar site, called SpotCrime.com. However, its business model is different. It seeks to get the data for free — combing various other sources and working out deals with law enforcement itself. Its business model is to sell advertising on the site, as well as to work out partnerships with different media properties, who wish to use the data SpotCrime has collected.
You can probably see where this is headed. Report See, not surprisingly, found the publicly available CrimeReports site to be a treasure trove of good data, and began scraping it to include in CrimeSpot. Public Engines took issue with this and demanded Report See stop. Apparently, the company initially agreed to do so, but then soon began scraping the site again. From there a technical one-upmanship battle appears to have ensued. Public Engines kept trying to block the CrimeSpot scraper, and Report See kept adapting its scraper. Also, somewhere along the way, Report See started going to the same law enforcement groups that Public Engines worked with, asking for access to the same data, and pointing out that, as public records, the data should be available under various public records access laws.
And, now, we get to the lawsuit. Public Engines pretty much tries to throw everything at Report See, some of which seems pretty questionable. The one thing that surprised me, actually, was that Public Engines didn’t toss in a copyright claim. Thankfully, it seems to have realized that would have gone way too far. But it’s other arguments are still pretty problematic.
Second, Public Engines says there’s a breach of contract. But, you might point out, Report See and Public Engines have no contract. Indeed. But Public Engines claims that the terms of service on its website represent a valid contract. Again, it seems like Public Engines is stretching the law to claim that a contract has been made here. Even though it notes there’s a link to the terms on every page, it never made Report See agree to the contract, and even so there are still some questions about whether or not any “clickthrough” agreement is really binding.
Third, Public Engines pulls out a Utah statute on “anti-cyberterrorism.” No, I’m not kidding. Apparently, Public Engines is claiming that by accessing the website without authorization (see the two points above) and then “obtaining CrimeReports.com’s intellectual property” in a way that “led to a material diminution in the value of Public Engines’ intellectual property,” Report See is violating this anti-cyberterrorism law. My question: what intellectual property? Remember, Public Engines knew better than to include a copyright claim. And that’s because it holds no copyright on the data. So what intellectual property has actually been obtained here? Public Engines skips over that.
Fourth, Public Engines pulls out a Lanham Act false advertising claim. Again, this appears to be a stretch of the law’s purpose. The point of this law is to stop someone from advertising a product as being from Coca-Cola, when it’s really Bob’s soda. That’s to avoid harm to the consumers (remember, the Lanham Act is really about consumer protection) who bought Bob’s soda thinking it’s Coca-Cola. But here, there’s no “confusion” or issue where consumers are likely to be tricked in a damaging way. The data is the same. There’s no harm done. The “data” is not “owned” by Public Engines or CrimeReports. It’s factual data.
Given all of these points, you had to guess that the next claim from Public Reports was (you guessed it!) our favorite insanity and recently back-from-the-dead legal craze: hot news, which is showing up in all sorts of lawsuits these days, and is an incredibly troubling restriction on free speech and freedom of the press. Remember, Public Reports knows that it has no copyright claim on this data. It’s factual data from public agencies about crime. It would have an incredible chilling effect to suggest that such data is covered by the hot news doctrine.
Public Engines still isn’t done yet. Its sixth claim is for “interference with a contract,” because of Report See’s attempts to go to police agencies directly. This, again, seems silly and beyond the scope of the law. It’s perfectly normal and basic competition to approach customers of competitors and to try to get deals yourself. That’s how business works. Claiming that no one else can try to get this data from law enforcement agencies is ridiculous.
Honestly, the only legal claim that I thought the company might have that made any sense at all, was about the claim that Report See had promised to stop scraping its site, and then changed its mind. But even that might be a tough sell. Of course, we’ve seen judges make all sorts of crazy rulings on nearly every one of the issues above, and given that it’s a local court (Public Engines filed it in its home court), who knows what might happen. But if the court buys any of these arguments it could set really bad and chilling precedents.
Now, you may ask, what should Public Engines be doing in this situation, since it clearly is going through a lot of effort to collect and format this data. That’s all true, but it can still compete pretty easily against Report See. If you compare CrimeReports to SpotCrime, you’ll quickly realize that CrimeReports is much nicer and much more user-friendly. It’s also not weighed down with annoying advertisements everywhere. Anyone who is interested in using such a tool would almost certainly gravitate to CrimeReports over time. It’s just a better site, and since it apparently gets the data first, you’d figure it’s also more up-to-date.
In other words, CrimeReports should be able to compete effectively in the marketplace. It’s disappointing that rather than doing so, it broke out the lawyers.
Separately, this is now the second case we’ve seen in just the past few weeks that has tried to combine both a hot news claim and a CFAA claim — and in both cases, these were attempts to stretch the doctrines and the law well beyond intended purposes. It would be nice if the courts quickly realized what’s happening and fixed things (either that or Congress came in and got rid of hot news and clearly limited the CFAA — but don’t expect that to happen).
In the end, though, this really does come down to a simple question. Just because one company went through the trouble of collecting factual data from public agencies can it stop others from using it? The US has, on purpose, rejected any sort of “sweat of the brow” concept for protecting intellectual property. It does not, for the most part, recognize “database rights” for this reason. Public Engines is basically trying to replicate a database right by misusing a variety of other laws and doctrines. If we’re serious about protecting First Amendment rights, it would be good to see the courts smack down such attempts to stretch the law.