The NHL’s website, NHL.com, recently updated the language of the TOS (Terms of Service) regarding the use of the site’s Services and Content. This has caused a stir in the analytics community due to the possible implications of the language contained therein. A friend asked if I would look over the former and updated TOS’s and give my impressions of the meaning and possible implications there from. Of course, these are simply my impressions of the language in the old and new TOS’s and are not intended to be construed as legal advice nor should these impressions be relied upon in such a manner.
OLD NHL.COM TOS:
In addition, the NHL Parties also provide access to certain footage (video and audio), photographs, text, images, statistics, logos and other media and intellectual property related to or otherwise associated with the National Hockey League, its member clubs and the sport of hockey (collectively, the “Content”).
- NHL.com Terms of Service (formerly used), Section 2. Services And Content
RTSS statistics and data (i.e. data targeted by scraping programs used for stats sites, stats/tracking projects etc…) were included in the definition of Content for the purposes of the old TOS.
You may not use any of the Content or Services for commercial purposes. The Services may not be viewed in areas open to the public or in commercial establishments where multiple people can view it at the same time. Further, you may not copy, distribute, modify, republish, broadcast, retransmit or publicly display any of the Content or Services, create derivative works of them, charge admission for their viewing, or transmit or distribute running accounts of them, unless you have the prior written permission of NHL ICE, which permission may be withheld in NHL ICE’s sole discretion.
- NHL.com Terms of Service (formerly used), Section 2. Services and Content
Sites and/or projects using RTSS data were prohibited by the old TOS. Enforcement of this provision was not undertaken as far as I know.
NEW NHL.COM TOS:
You may not access or use, or attempt to access or use, the Services to take any action that could harm us or any other person or entity (each a “person”), interfere with the operation of the Services, or use the Services in a manner that violates any laws.
- NHL.com Terms of Service (recently updated), Section 2. Prohibited Content and Activities
The new TOS details a general position by the league indicates a desire to protect their site and services from malicious attack and/or abuse. The language seems to target activities by outside parties attempting to use Content (included in definition of Services) that would hamper or interfere with the efficient functioning of the site.
For example, you may not:
- Impersonate any person or falsely state or otherwise misrepresent your credentials, affiliation with any person, or the origin of any information you provide;
- Engage in unauthorized spidering, scraping, or harvesting of content or information, or use any other unauthorized automated means to compile information;
- Obtain or attempt to gain unauthorized access to other computer systems, materials, information, or any services available on or through the Services;
- Use any device, software, or routine to interfere or attempt to interfere with the proper working of the Services or any activity conducted on the Services or attempt to probe, scan, test the vulnerability of, or breach the security of any system, device, or network;
- Circumvent, reverse engineer, decipher, decompile, disassemble, decrypt, or otherwise alter or interfere with (or attempt, encourage, or support anyone else’s attempt to engage in such activities) any of the software comprising or in any way making up a part of the Services. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools, or network probing tools) is strictly prohibited;
- Take any action that imposes an unreasonable or disproportionately large load on our network or infrastructure;
- Upload or otherwise transmit any communication, software, or material that contains a virus or is otherwise harmful to our or our users’ computers, devices, or systems; or
- Engage in any other conduct that restricts or inhibits any person from using or enjoying the Services, or that, in our sole judgment, exposes us, users or any other third party to any liability, damages, or detriment of any type.
Violations of system or network security and certain other conduct may result in civil or criminal liability. We may investigate and work with law enforcement authorities to prosecute users who violate the Terms. We may suspend or terminate your access to the Services for any or no reason at any time without notice.
– NHL.com Terms of Service (recently updated), Section 2. Prohibited Content and Activities
The majority of the examples provided in the Prohibited Content and Activities section focus on actions that would attempt to circumvent the site’s security such as paywalls, blackout provisions, etc. The specific language that has been the focus of added scrutiny for analytics users is “Engage in unauthorized spidering, scraping, or harvesting of content or information, or use any other unauthorized automated means to compile information”.
Scraping or harvesting content or information is often used on sites that provide shooting/possession information and in projects that examine shooting in conjunction with manually tracked events such as zone entries, zone exits and the like. While this language could be used to enforce a prohibition of these activities, it’s inclusion in a section describing prohibited malicious activities could indicate the league’s intention in that regard. My reading of these sections together and in comparison with the former TOS language leads me to believe that unless a user engages in scraping activity that somehow harms the league’s site and/or its users, the league may not be enforcing the provision.
Additionally, the costs associated with enforcement of these provisions, including proving damages associated with the scraping activity could be a deterrent to enforcement unless the user engaging in the scraping or harvesting of data is somehow making a good deal of profit from the venture. Because the league’s site does not currently offer certain processed forms of the RTSS data (Corsi, Fenwick, etc…) the use of the data in this manner would appear to be harmless to the site in that it is not taking users or viewers away from the league’s site, thereby diminishing ad revenue, nor interfering with the need for users to register for pay services. These provisions appear to be geared more toward the league’s actions against sites providing “pirated” feeds of games and also entities that may try to harvest user data.
Both the TOS formerly used by the NHL and the current TOS include language that would allow the league to require activities such as scraping be stopped. The language is more specific in the current TOS of course, but in and of itself, is not represent a change in the league’s policies. Technically, these provisions could even be used to prohibit articles or other such writing that includes any statistics kept by the league, e.g. penalty minutes, power play opportunities, etc…
The fact of the matter is that it is good for the league to have widespread coverage of its product. So long as others are not making ill-gotten money off of proprietary information, it doesn’t seem that the league would benefit from or have a real interest in putting a stop to activities such as tracking on ice events and correlating them with RTSS data despite the fact that they most certainly could do so.
Again, these are simply my impressions of the language in the old and new TOS’s and are not intended to be construed as legal advice nor should these impressions be relied upon in such a manner.