Ownership and control over publicly accessible platform data

Airbnb, publicly displays a wide range of information such as unit descriptions, prices and locations, hosts and guest reviews. This information is often of interest for public serving groups,like governments and researchers interested in housing. In a data-driven economy, questions arise as to who has the right to control such data, and the ways such control can be exercised.

Scassa analyzed statute and case law in order to assess the current situation around the scraping of publicly accessible platform data. The research involved a detailed analysis of Airbnb’s documentation; the platform; studies and reports relying on scraped Airbnb data; as well as regulations from Canada and the USA.

A thriving data ecosystem has arisen around Airbnb’s publicly accessible data that provide valuable insights into a range of issues such as tourism, tax avoidance and rental discrimination. Civil society organizations, journalists, researchers and various businesses all make use of Airbnb data to serve the broader public interest.

Access to this data isn’t guaranteed as platforms have several legal tools they could use to potentially cut off this supply of information to actors in their data ecosystem.

Ownership

Intellectual property rights: Airbnb does not claim copyright on member content but may have a copyright on the overall compilation of the site’s content as its host and compiler.
Rights to use: Although there are currently no records of lawsuits against Airbnb data scrapers, the availability of fair use defenses remains uncertain, especially for small organizations with little resources.
Chattel rights: In some data-scraping cases, plaintiffs have argued that scrapers are engaging in a trespass to chattels, interfering with their web servers.

Contractual or Technological Restrictions

In at least two cases, courts have held that contractual terms of service that prohibit scraping may provide a basis for breaches of contract liability. Anti-circumvention provisions, now found in most copyright statutes, could provide an additional recourse.

Privacy Law

To the extent that platform data includes personal information, data protection laws may impose further restrictions on the collection, use and disclosure of these data.

Economic and power imbalances in the data access litigation process create a risk that consumer perspectives and the public interest are not being represented in the law as it evolves. An ecosystem approach is particularly useful to address the reality that non-commercial users are unlikely to pursue issues in court because of high litigation costs. It is important to keep in mind the diverse system that relies on data coming out of these companies and not just hear the claims of major corporate players.

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