Explorica, Inc., was founded to compete with EF Cultural Travel, which dominated the market in…

Explorica, Inc., was founded to compete with EF Cultural
Travel, which dominated the market in global tours for high school students.
Setting Explorica’s tour prices lower than EF’s became an important Explorica
objective. EF’s tour prices were accessible through the firm’s Web site, where
the user who desired information would enter various pricedetermining factors,
such as desired date of departure and destination. The Web site would translate
the user’s preferences to a special code, decipherable only by the site’s
servers and human operators, and would submit the code to the server. The
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Explorica, Inc., was founded to compete with EF Cultural
Travel, which dominated the market in global tours for high school students.
Setting Explorica’s tour prices lower than EF’s became an important Explorica
objective. EF’s tour prices were accessible through the firm’s Web site, where
the user who desired information would enter various pricedetermining factors,
such as desired date of departure and destination. The Web site would translate
the user’s preferences to a special code, decipherable only by the site’s
servers and human operators, and would submit the code to the server. The
server would determine travel options and prices suited to the user’s
specifications, and then send them to the user’s computer. In view of the large
number of possible factor combinations that a user might submit to EF,
Explorica realized that manually obtaining price information on every tour that
EF could offer would be nearly impossible. Explorica therefore wrote a
“scraper” program, using code information provided by Explorica Vice President
Phil Gormley, a former employee of EF. The scraper automatically submitted
codes representing all possible factor combinations to EF’s server and then
recorded the results in a spreadsheet. Explorica’s use of the scraper resulted
in a compilation of 60,000 lines—the rough equivalent of eight telephone
books—of data. Explorica used this information to undercut EF’s prices. When EF
learned of Explorica’s actions, EF sued Explorica, alleging civil violations of
the Computer Fraud and Abuse Act (CFAA). Section 1030(a)(4) of the CFAA is
violated when a person “knowingly, and with intent to defraud, accesses a
protected computer without authorization, or exceeds authorized access, and by
means of such conduct furthers the intended fraud and obtains anything of
value.” EF sought a preliminary injunction that would bar further use of the
scraper and would require the return of all materials generated by the scraper.
Was EF entitled to the preliminary injunction?

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