Tuesday, November 26, 2013

Can I Use Data From Job Posting Websites?

Dear Rich: I have read some of your material on fair use and have some questions: I want to start a business that deals with job searching. Particularly the website will be a job search engine that aggregates job postings (the entire job post) directly from the employers career pages - scraping and than re-posting the job postings on my website. The source of the job will mentioned at each job posting and the users will be redirected to the original web page of the employer - somehow similar to linkup.com. (1) Are job postings considered to be copyrighted materials? One thing to mention is that most websites include a " Copyright © 2013 XXX Inc. All rights reserved. " - like message on every page and also, most of them, include expressions like: "...The content of this website is the property of XXXX and is protected by copyright laws... " in their terms of use, and (2) Considering all this, does scraping and re-posting job postings from employers web-sites qualify as fair use? If you're operating a search engine, you're generally free to cache (copy and index) material from around the web without infringing any copyrights (at least according to one court). That holding is partially based on the principle that each site has the power to prevent caching with the insertion of code. And of course, at least one company seems to have pulled off the same product you're interested in creating. (Not that it can't still be a minefield --  some companies may not appreciate the aggregation of their listings.) Two things to consider:
Did you execute any end-user license agreements (EULA)? That is, did you have to click to agree to join a site from which you get material? If so, that EULA most likely prohibits you from scraping, copying, etc. In that case, if you violate the EULA, the site could come after you for the remedies set forth in the agreement, regardless of copyright law. Keep in mind that EULAs that require assent (click to agree, check this box, etc.) are different from, and much more likely to be enforceable, than a terms-of-use statement found at a website.
How much material are you taking? What type of material are you taking? Job postings typically are comprised of two copyrights: a copyright in the listings -- the words and expression of the listing -- and a compilation copyright for the database collection, organization and selection of listings.  As a job search engine, you are not likely to infringe the compilation because each search that you generate likely accesses a small percentage of each database collection. (Although there's no bright line test for compilations, courts have permitted copying of over 70% of some compilations.) As for copying the "expression" in the job listing, the more expressive or unique the writing in the job listing -- for example, funny or flowery listings -- the harder it is to justify copying the complete listing. That may explain why search engines typically only include the first sentence or two from search results. Of course, most job listings, like apartment rental listings, have a minimal level of originality and are primarily a collection of uncopyrightable facts. So you're not likely to run into problems.
Finally ...  avoid creating any claims or implication of association or endorsement -- for example, stating "We search for jobs at Apple and Microsoft."

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