However, terms and conditions posted on websites require the agreement of both parties to be legally binding – in this case: Airbnb and data platforms. So how can we prove that both parties come to an agreement? Here are the 2 ways to express concurrence:

1. Browsewrap Agreement – Most websites use this form because of its sheer convenience. This agreement is seen to be made as long as the user is on the website. 

The website owner has the burden of proof to show that the user is aware of the terms and conditions. And let’s admit it: who takes the time to visit, even read, and mostly understand a website’s terms and conditions? This is the simple reason why most courts do not see browsewrap as a legally binding agreement.

2. Clickwrap Agreement – This is seen as a foolproof agreement between website owners and users. Users must click a button or checkbox usually placed at the bottom of the terms and conditions. Usually, clickwrap agreements happen once a user creates an account on the website. In fact, Airbnb has won a case at Florida Supreme Court on the basis of its use of the clickwrap agreement. 

However, data scraping is an automated process that does not require a log-in use. This means that users do not express consent to the website’s specific terms and conditions. But if the terms and conditions are not agreed upon by both parties, can website owners still sue people who scrape publicly available data?

II. Publicly Available Data 

The US Ninth Circle of Appeals has made a landmark ruling: Scraping publicly available data is legal. The legal question of whether the practice of scraping publicly accessible data was already resolved in the HiQ Labs v. Linkedin case. 

HiQ Labs is a data analytics company that scrapes publicly available data from LinkedIn profiles to provide insights to its clients. LinkedIn then argued that the scraping violated its terms of service and constituted a violation of the Computer Fraud and Abuse Act, which has a provision for hacking. Linkedin claimed that scraping was equivalent to hacking since it was already a violation of its terms of service, just like what Airbnb has with its terms and conditions above. 

The Court found Linkedin’s argument a bit of a stretch. Since Linkedin invoked the CFAA, the Court clarified that the CFAA was “a statute designed to prevent unlawful intrusion into otherwise inaccessible computers” This affirmed that data scraping is, in no way, a form of hacking since the data involved is publicly available. 

The CFAA, however, is understandably strict with data “containing national security information or financial data and those operated by or on behalf of the government.” API scraping of short-term rental data analytics companies does not even touch national security concerns, thus making it legally permissible. 

This landmark case finally shed a light on the legality of scraping publicly available data. But who really owns data scraped by short-term rental analytics companies: Airbnb or its users?

III. Copyright 

You might be thinking that since the data comes from Airbnb, the company owns them outright.  But facts or data cannot be copyrighted in the United States. Airbnb is headquartered in the US.  

While Airbnb has its own database, the company has to meet minimum requirements for copyright protection. This is clarified in the case of Feist Publications, Inc. v. Rural Telephone Service Co. 

Feist Publications, a publisher of directories, had copied a substantial portion of Rural Telephone Service Company’s directory into its own publication without permission. Rural Telephone Service Company sued Feist for copyright infringement, arguing that the white pages directory was a “compilation” and therefore protected by copyright.

However, originality is the minimum requirement for copyright protection. This is what Rural Telephone failed to prove. The Court states: “[s]ince facts do not owe their origin to an act of authorship, they are not original and, thus, are not copyrightable.” The same is also applied to Airbnb since its database merely holds information only original to the facts themselves.

In 1991, the Feist v. Rural Telephone decision established an important precedent for copyright law, clarifying that not all compilations are eligible for copyright protection and that compilations must have originality and creativity to be protected. This ruling also had a significant impact on the publishing industry, as it allowed for greater freedom in using and republishing factual information, just like in the case of short-term rental data analytics companies. 

IV. Fair-Use

Even if we live in a world where Airbnb data is protected by copyright, we could still have another legal doctrine as a recourse. Fair use permits the unlicensed use of copyrighted materials, of course, in allowable circumstances. In short-term rental data analytics, such applicable factors are:

1. “Transformative” use – Short-term rental data analytics companies do not just scrape data from Airbnb. They make these data easily understandable and available to the general public by creating web applications. Just by looking at multiple data analytics apps, you can see how Airbnb datasets are transformed and presented in their own ways.

2. Creative expression – Creativity is an essential ingredient in making a successful app that stands out from the competition, engages users, and delivers value. By using creativity to enhance the UI/UX design, features & functionality, branding & marketing, and problem-solving, app developers can create a product that is both innovative and memorable.

3. Benefit to the market  – The benefit of fair use to the market is allowing for the creation of new works that build upon existing copyrighted material, which can lead to innovation and economic growth. Of course, fair use is not applicable if you intend to compete against the copyright owners. This is not the case with short-term rental analytics companies. What they do is the opposite: they encourage more people to stay on Airbnb platform by guiding them to earn more revenue. This is a win-win situation for both Airbnb and data analytics companies.