The legal boundary of data scraping*

The standard for determining the legitimacy of data scraping is vague, and the existing literature is insufficient. Jurisdictions around the world have come up with two predominant enforcement patterns, namely, the behaviour pattern and the entitlement pattern. The co-existence of the two incompatible patterns has led to conflicting judgments in China and compromised the first-mover advantage of data innovation. The behaviour pattern, despite its flaws, is more suitable for China than the entitlement pattern and should be set as the basis for future improvement. In particular, such a pattern can be modified based on the lessons learned from the entitlement pattern. A normative reconstruction of the analytical framework suggests that the standards for evaluating data scraping shall incorporate the value of datasets, the technical measures of datasets and the substantial substitution effect of the acquisition.