tracker

The handy Apple Tracker site that allowed people to check Apple Store availability for new products has closed its doors after receiving a DMCA takedown notice from Apple.

I’ve decided to turn off the site. I’m not doing this because I want to, but rather because I received a DMCA takedown notice (you can see the full text below) from Apple. I’m not really interested in picking a fight with apple so … I guess it time to just say good bye … 

The only explanation given is that the site contravened the terms of use for apple.com by scraping data:

You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site.

While it’s true that the site broke this rule, it’s hard to see why Apple would object to a tool designed to help customers hand over their cash to the company. It’s not like Apple would need to be concerned about its bandwidth bill, and it seems hard to imagine usage could have been high enough to stress one of the world’s most popular websites.

Another site using the same screen-scraping approach has also disappeared, so it seems Apple may have issued similar takedown notices to all the ones it could find. It seems a pity when such tools would likely have proven extremely handy when the Retina iPad mini goes on sale if those screen supply rumors are true …

Full text of the takedown notice below. 

321 11th St, San Francisco, CA 94103

Takedown Notice

Date: October 17, 2013

Dear Heroku Legal Agent:

I, the undersigned, state UNDER PENALTY OF PERJURY that:

[1] I am, a person injured, or an agent authorized to act on behalf of a person injured by unlawful web content published via and at heroku.com

[2] I May Be Contacted At:

Name of Injured Party : APPLE INC.

Name and Title: RYAN BRICKER, ASSOCIATE

Company: KILPATRICK TOWNSEND AND STOCKTON LLP

Address: TWO EMBARCADERO CENTER, 8TH FLOOR

City, State, and Zip: SAN FRANCISCO, CALIFORNIA 94111

Email address APPLE_COPYRIGHT@KILPATRICKTOWNSEND.COM

Telephone: 415-576-0200

Fax: 415-576-0300

[3] I have a good faith belief that the the website identified by URL below is unlawful because, among other things, the page scrapes and collects data from apple.com in violation of the apple.com Internet Service Terms of Use (see: http://www.apple.com/legal/internet-services/terms/site.html) and Heroku Acceptable Use Policy, copied here:

Apple.com Terms of Use

Your Use of the Site. You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Apple reserves the right to bar any such activity.

Heroku Acceptable Use Policy

2.2 Your use of the Heroku Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.

[4] Reason:

Content Type / Violation: Automated scraping/copying/acquiring web app, operating in violation of the apple.com Internet Service Terms of Use

[5] Please act expeditiously to remove or otherwise disable the following website/web application:

http://iphone-check.herokuapp.com/

[6] I have a good faith belief that the removal of copyright management information from the material listed above is not authorized by law; and

[7] The information in this notice is accurate.

Thank you for your kind assistance.

Truthfully,

/Ryan Bricker/

Ryan Bricker
Kilpatrick Townsend & Stockton LLP

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24 Responses to “iPhone and iPad stock tracker site pulled after Apple issues takedown notice”

  1. zoidbert says:

    The whole reason I went to my local Apple Store last week and bought three 64GB iPhone 5S models (upgraded me, my wife, and my son) was because Apple Tracker told me they were finally in stock. Apple shouldn’t have shut it down, it should have bought it (per se) and done its own version.

  2. One thing that I can think of – Apple, being control freaks that they are, cannot guarantee the correct data being displayed on any site that has scraped information from their .com.

  3. That’s what happens when you suck at something, Apple. When you fail to execute and leave users searching for actual inventory of a product released more than a month ago, someone solves this problem for you. I wouldn’t have my iPhone 5s without this tool, because I was stuck with Gray on launch day, and I planned to return it for gold. I found one 3 hours away, using the iphone-check site. If Tim Cook used his excellent supply chain management skills, we wouldn’t be here. Worst Apple news in a week (it’s coming more frequently).

  4. gpy (@gpy) says:

    so this means that also all the websites hosting ranking and stats for the iOS apps usage/download are violating the rules as well. Is that correct?

  5. Phill Bogart says:

    Does Ticketmaster vs tickets.com ring a bell ol Ry baby? Apparently, this “high powered” shill… err, lawyer doesn’t even understand the basics of copyright law. If the data is put out there by Apple on their website then it’s freely available for fair use under copyright law as in the second of these 3 paragraphs from newyorklawjournal dot com:

    Copyright Infringement

    Scraping inherently involves copying, and therefore one of the most obvious claims against scrapers is copyright infringement. However, such claims are often open to attack on several grounds. First, in order to have standing to bring a claim for copyright infringement, the owner (or exclusive licensee) of the website being scraped must also be the owner of the copyrightable content that is the subject of the claim.2 This can pose a barrier to bringing a lawsuit if, for example, the content at issue is user-generated (such as videos or reviews), and the rights in the content have not been transferred to the website owner.

    Second, copyright law does not protect ideas, but rather only tangible expression.3 Thus, the scraping of general factual data does not give rise to a viable claim for copyright infringement. For example, in Ticketmaster v. Tickets.com, the court rejected an infringement claim because the material being extracted—factual information regarding concerts and URLs—was not copyrightable.4

    Third, even if the information copied by the scraper is protectable under copyright law, the defendant may be able to rely upon the “fair use” defense. Under the Copyright Act, courts are to consider the following factors to determine if a use is a fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.5 For example, in Kelly v. Arriba Soft, the court held that the use of scraping software by a search engine to reproduce images in thumbnail form was not a sustainable basis for a claim of copyright infringement, because the thumbnail images created from the full-size scraped images were “transformative” and qualified as a fair use of the images.6

    • Thanks Phill, for the great find. As I suspected, Apple is being overly cautious and seemingly intimidating. Couldn’t they first have contacted the site and asked (over the phone or via email) to take it down, instead of resorting immediately to lawyers e.t.c.
      I understand that he wants to take the site down rather than fight Apple, because Apple have so many resources available to them, they will drag him through mud for years to come.

      • rlowhit says:

        Most companies use lawyers to communicate a request. It is standard practice with even much smaller companies, I have yet to see any company successfully execute the pretty please strategy.

  6. Simple solution, just don’t have that kind of “sensitive” information on Apple.com.
    Don’t put it on the internet, if you don’t want others to get a hold of it.
    Asshole Apple in this regard (I otherwise like Apple very much and use their products – but this is just being an asshole)

  7. Pontus N says:

    “You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site”

    Doesn’t a “program” include a browser. Are we not allowed to browse the site?

  8. emptystacks says:

    This kind of action is actually not sanctioned by law. I’ve taken a look at the Digital Millennium Copyright Act of 1998 and no where does it say: “””You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content”””

    The citation that Apple listed is merely referring to the their terms of service. The terms of service has this clause and is listed on http://www.apple.com/legal/internet-services/terms/site.html. However, because the user had never agreed to it, that is there was never a “meeting of the minds” (see the uniform commercial code), the contract/license that Apple has presented should hold no validity and would probably be struck down in court.

    That being said, lawyers cost a lot of money and Apple would probably overwhelm this guy with legal fees.

  9. How about moving the site to a non US site?
    DMCA are not valid there.

  10. C’mon Apple…this service was so useful and at the same so benign and innocuous that you could have left alone and not be jerks.

  11. jd902 says:

    I really don’t know what to think here. I used the site and I don’t really see what Apple’s problem is. I don’t think the site meant any harm, nor do I think Apple was damaged in any way, other than by page requests – and it’s possible that the site helped reduce that load.

    The apple-tracker site was very clear that stock can change at a moment’s notice. I don’t think they were trading on Apple’s brand in a meaningful way.

    The only thing I can think of is that letting it go might weaken their defense against some other site that intends economic harm, but that seems a stretch.

    I think the guy made the best choice that he could given the options.

  12. sammullinix says:

    The whole reason I knew where to buy my 5S and to get it on the day it came out was purley because of this website. Shame on you apple, all they have done is help you get sales.

  13. Tech says:

    I can see that Apple has rules, but isn’t this helpful for their business, or do they not want people to know that they’re not actually out of stock and they’re available in more places than Apple makes you think?