WA Intellectual Property Law Issues Making App for Specific Website?

[ozappdev]

I'd like to write an app which effectively behaves as a specialised web browser for one particular website.

So for example, instead of using Firefox/Internet Explorer/Chrome to browse this particular website, my customers can use my app. Because my app is aware of the html content of this site it can do things like automatically browse all products offered (as opposed to the user manually-clicking on every product in conventional web browser), and then let the user do offline cache searches and things which are more specific than you can do in a conventional browser.

The app only accesses the website's public data, and caches it locally on disk, just as a normal webbrowser does - there's nothing sneaky.

Neither myself or the app distributes any data. I respect their IP. It's literally just like using a web browser but where it only ever connects to one site, and maintains a local file cache just as a web browser does.

... THE CATCH! .....

The website's Terms&Conditions specifically prohibit things like "spider", "robot", "site search", "retrieval app" etc "to index/retrieve any portion(s) of the site" - it sounds as though using a web browser itself is against T&C!

I see my app as beneficial to both their customers and the website company, as (for starters) my app actually uses a LOT less bandwidth than conventional browsing. They also make the claim that their prices are the lowest, so my app can help their users see that. It might even encourage them to shop more regularly with that website, so yes I see many benefits for both the website and their customers.

Users of my app would still have to go to their website and do a conventional 'checkout' if they wanted to buy anything, so my app isn't a replacement to their website, just an enhanced way of viewing/searching it. My app also essentially provides free advertising for that website's company in the sense that users of my app are browsing their site.

Would this be illegal under intellectual property law to release such an app? Or would it be illegal for my customers to use my app? Or is it legal, but just a violation of their T&C? Does it make a difference if the app is free or $10?

Thank you very much

 

[James D. Ford - Solicitor]

Hi Ozappdev

There are a few legal considerations here.

Based on what you have described, even if the website T&C's are worded such that they prohibit a standard web browser from accessing the website... a reasonable person would see this as unworkable... and that the words should be interpreted very narrowly, so that normal web browser access is allowed, as this is clearly the intention of a commercial website, open to the public, wanting customers to access their website, and purchase their products.

We also need to consider that a "site spider" is available as an app for Google Chrome... so currently this type of functionality is seamlessly incorporated into web browsers.

What would your app be doing that a normal web browser cannot do? and is this in breach of the T&C's?

So if the T&C's do not prohibit normal access by a web browser, what are they seeking to prohibit?

Do they prohibit search engines like Google accessing the site, and indexing the contents for indexing, and search purposes? If they were trying to do this... why? what is their intention in doing so? as it would appear to be counter to all commercial common sense.. where most businesses actually pay Google advertising fees to display their website on searches?

Can this business be found via a Google search? If so, Google could be in breach of the T&C's... I assume that the company is not suing Google because of this.. what would the damages be?

Logically, a business would want to stop a competitor from scraping their site for details, which could be used to compete against them? This would mean they could potentially loose sales, and their promoted "our prices are the lowest", competitive positioning....

The difference between the two above examples, if that the first help their business, and the second causes damage - via lost business...

After the intention is determined, then what is permitted or prohibited can be more easily determined.

Do they provide definitions for these terms - spider, robot, site search, retrieval app?

If not, we need to look at the commonly accepted definitions of these terms...

Lastly, even if there is a breach of the website T&C's... what is this website going to do?

Sue for damages - that would not work, as based on what you describe... you are helping, not damaging their business.

Restrict access by your app? Is this technically possible? If so, you may want to consider the impact for you if they did this?

If you give away the app.... it probably would not have any impact.

If you sell the app for $10... then you might have unhappy customers!

My recommendation, is that if you are considering charging for the app, you should contact the website, and attempt to enter a legal agreement with them, that provides permission for your app to access their website.

If you are giving it away.. you just need to be careful, that your app (in the wrong hands) could not be used to hurt this web sites business... if so, you could be wrapped up as a co-defendant, in any action by this web site against the party who has used it to hurt their business.

Kind regards

 

[ozappdev]

James thank you very, very much! Yes there's a lot to consider hehe :/

I guess my main worry is that if I go to them they'll just say "No" straight out, mainly because they have no control over my app, so that would leave me in a tricky place where even if my app was legal just like a web browser they could still get a court to stop my app accessing their site?

My app isn't actually just for 1 website though, it's really for two (possibly one or two more in the future) competing websites... for example Hungry Jacks and McDonald's... my app basically downloads the full menu off each website, and because it knows how to read the specific html of each site it can identify the products and prices... the user can then search for "cheeseburger", "small chips", etc. to find which one is cheaper. Ultimately if they want to then buy from McDonald's or Hungry Jacks they still have to go to the actual HJs/Maccas website though, so my app isn't a replacement in that sense, but just another alternative way to shop.

So, even though Hungry Jacks and MacDonald's compete against each other maybe they wouldn't like their prices to be compared?

But if I establish the app first and get it out into the public and show that it's a good thing for consumer choice then perhaps it'd force their hand to allow me to continue developing it?

Another thing is that I would actually be giving them free advertising ... that is, every single time a user starts my app they would see the Specials for both Hungry Jacks and MacDonald's before they can actually do anything with the app. I feel this would be a good way to help get/keep them on side.

But yes I'm just really worried if I should approach them and they'll probably just say "No" even though what I'm doing is perfectly legal :-/ I've put a lot of work into this. So I'm thinking it might be better to not approach them, and simply establish the business first/get the app out there, and hopefully then can establish a good relationship with them which is what i would like.

I see the app as beneficial to their customers, me the developer of course, and obviously anyone using my app is going to be buying from either Hungry Jacks or MacDonald's, so i see it as beneficial to the companies themselves, especially with the free advertising ... but would they simply say "no" because they have no control over my app, and could they bring a court to shut me down when my app is basically just a specialised content-aware site-specific web browser?

Nervous times!!!... thank you again for any feedback!