Designer Skin LLC v. S & L Vitamins, Inc., et al.
EF Cultural Travel BV, et al. v. Zefer Corporation
318 F.3d 58 (1st Cir., January 28, 2003)
Plaintiff EF Cultural Travel BV ("EF") and defendant Explorica are competitors in the student travel business. Explorica was founded by former employees of EF, who had executed confidentiality agreements in favor of EF. Explorica hired Zefer to create a "scraper" tool, which would obtain from EF's website relevant price information about travel packages EF offered. Explorica then used this information to price its own offerings, typically at a price 5% less than EF.
When EF learned of this practice, it commenced suit against both Explorica and Zefer, arguing that their conduct constituted a violation of 18 U.S.C. §1030(a)(4) of the CFAA. This statute provides, in applicable part:
"The statute defines 'exceed authorized access' as 'to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.' Id. § 1030(e)(6)."
The District Court issued a preliminary injunction enjoining Explorica from continuing to use the scrapper tool. This decision was affirmed by the First Circuit in a separate opinion on the ground that Explorica had used confidential information obtained from EF to assist in obtaining this pricing information in violation of confidentially agreements executed by former EF employees now working for Explorica.
While restrictions on authorized use can also be implied from the presence of such things as password protected access, the First Circuit rejected the district court's notion that the question of usage should be answered by looking to the "reasonable expectations" of the parties. Said the court:
The court nevertheless affirmed the grant of injunctive relief against Zefer, on the ground that Zefer was aiding the activities of Explorica, which itself had been properly enjoined from use of the scrapper. Said the court: