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How Does the Common Law Apply to New Technology: Cairo v. Crossmedia Services

Learn how traditional contract law principles adapt to the digital age through the intriguing case of Cairo v. Crossmedia Services. Professor Mark Movsesian discusses how a court applied long-standing legal concepts to resolve disputes involving web scraping and automated data collection. Although the common law developed over time without specific reference to modern technology, the principles are flexible enough to work in new situations. https://youtube.com/watch?v=kfqSZBgNLZo

Transcript

Cairo v. Crossmedia Services shows how in the common law method, we adapt old traditional contract law principles to new technology. And in this case, we're adapting some old contract principles and we're using them, we’re reconfiguring them to apply to the world of digital commerce. Now, the case involves Crossmedia Services. Crossmedia Services has a website in which it makes information from retailers available to consumers. You know, marketing information, coupons, sales, things like that. And Crossmedia Services website says that use of this information for commercial purposes is not allowed. And also, the website says, “using our website is an acceptance of our terms.” Okay, now Cairo is another internet marketing agency. Cairo also makes retailers information available to consumers, and Cairo collects information on the internet by means of a robot or a spider, which goes around the internet collecting this information, which it then repurposes for use on Cairo's own website. Apparently, Cairo's robot was accessing Crossmedia Services (or CMS's) site thousands of times. And every time it went to the CMS site, it collected the retailer's information and then repurposed it for Cairo's own website. Well, that was a commercial use. So when Crossmedia Services finds out about this, it says, Hey, wait a minute, you have breached the contract because you have used our website for commercial purposes, and we said you couldn't do that. And Cairo says, No, we didn't do that. Our robot can't read the terms of service. So we never accepted a contract with you. We never accepted that we couldn't use this information for commercial purposes. You can't sue us for breach of contract. Okay, well, this is a new situation. Obviously, when these common law principles were being developed, nobody knew about robots. And certainly nobody knew about robots that couldn't read. So, what do we do in a case like this? And the court says, well, even though we have a new technology here, it doesn't mean that the fundamental principles of contract law can't be updated to apply here as well. And a traditional principle of contract law is that if you use offered benefits, you are taken to have accepted the terms on which those benefits are offered to you. So an example is, if you go into a fruit stand and you see some apples there, and there's a sign above the apples that says,” apples: 50 cents.” If you take the apples you will be understood to have accepted that, okay, it's 50 cents per apple because you accessed the benefits and you will be taken to have accepted the terms on which those benefits are being offered. So we update that to this situation. Cairo is sending out these robots and the knowledge that the robots should have will be imputed to Cairo. And the knowledge the robot should have is when you are using offered benefits, you are taken to have accepted the terms on which those benefits are offered. And so, therefore, there is a contract between Cairo and CrossMedia Services. So, as I say, I think this is really a fascinating example of how these older contract principles continue to apply. Updated a little bit, but continued to apply to these new situations. And that's the way the common law works. The common law works by using these traditional principles and continuing to apply them all the time, even though the fact situation may change a little bit.

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