[avallach]

I'm curious if the ruling could be any different if the scraped website only served the content once the visitor clicks "accept" button next to the T&C link, rather than referring to it in the footer.

Also: is the situation any different when art galleries display online photos of public domain paintings and similarly attempt to put restrictions on use of these photos? After all, faithful photographic reproduction of 2D artwork seems even less derivative than transcription of song lyrics.

[TheJoeMan]

How about me taking a high resolution image of the Eiffel Tower at night (against copyright), and then another person scrapes my image and sells prints online? The argument reduces to “is stealing from thieves against the law”.

[joshuaissac]

It is more like if both you and the scraper got licences to make images of the Eiffel Tower, but the scraper just scraped and reused your photo instead of taking their own.

[avallach]

Unless you mean particular artwork called "Eiffel Tower At Night", Eiffel Tower is 3d object. Making photo of it gives you opportunity to involve your own creative invention. But photocopy of 2d artwork seems to me to be clearly just a copy, not a derivative that deserves own protection distinct from protection of the source art. Even more so than transcribed text of audio recording.