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Ugh, yeah, the more I think about this ruling, the less I like it. It's actually pretty insane to force a site to serve content. I think both parties are in th

Ugh, yeah, the more I think about this ruling, the less I like it. It's actually pretty insane to force a site to serve content. I think both parties are in the wrong here - HiQ for assuming they're entitled to receive a response from LinkedIn's webservers, and LinkedIn for abusing the CFAA to try to deny service rather than figure out a technical solution to their business problem. In my view: * The data is public, and free of copyright. If you're a scraper and can get it, you haven't done anything wrong. * The servers serving the data are still under LinkedIn's control, and they have no obligation or public duty to always serve that content. They could just as well block you based on your IP or other characteristics. If they want to discriminate and try to only let Google's scrapers access the data - what's wrong with that? Scraper brand is not a protected class. Tough taters if your business model "depends" on your ability to successfully make requests to another uninvolved company's webservers. If I were the judge, I'd throw this out and let LinkedIn/HiQ duke it out themselves - they deserve each other.

greatpatton 7y ago
The data are certainly not free of copyright. Data can contain user picture, or even small essay describing the job, life of a user though linkedin is not the copyright holder. Moreover these are personal data, and I'm not sure that the scraper has the original user right to collect the data. In Europe, the scrapper may face issues related to GDPR.
- johnny99 7y ago
  Facts can't be copyrighted, so such things as whether or not a person worked for a certain company, or went to a certain school, are unprotected, and with this ruling can be scraped, at least in the U.S. Others things common on LinkedIn, as you rightly point out, are protected--but by copyright law, not the CFAA. So a scraper acting in good faith would have to be careful about what they used if they wanted to respect copyright, but it's a separate issue from this ruling. http://www.dmlp.org/legal-guide/works-not-covered-copyright http://www.dmlp.org/legal-guide/works-not-covered-copyright
  - torstenvl 7y ago
    This is exactly right. Copyright protects creative expression, not pure fact. Famously, phone books (remember those?) are basically not copyrightable except for the ads, because they're just lists of data. Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
  - greatpatton 7y ago
    I never said that fact can be copyrighted, I said that most of the things people put around in their profile can be. I was responding to the claim that the data were not under copyright made above. If you just scrap name, company, position, this is fine, but I highly doubt that they just do that. This lawsuit can have tons of side effects.
    - fauigerzigerk 7y ago
      I think what hiQ does is to predict whether a particular employee is about to quit. So the interesting question to me is whether you can lawfully make predictions based on published information if that information is under copyright. In Europe the answer is probably no, because the assumption is that in order to analyse data you have to copy it first. To me, this interpretation of the term "copying" makes very little sense. So I wonder what US law makes of it.
      - anticensor 7y ago
        Europe has database rights, which has a fair dealing exemption for data analysis.
        fauigerzigerk 7y ago
        I'm not sure what "database rights" refers to specifically, but the whole matter is actually rather complicated, because the EU copyright directive has a lot of optional exceptions that member states may or may not adopt. Most of these exceptions only apply to non-commercial use though. So they wouldn't apply in a case like hiQ. UK specific exceptions are explained here: https://www.gov.uk/guidance/exceptions-to-copyright https://www.gov.uk/guidance/exceptions-to-copyright Unfortunately, both Labour and the Tories have taken a relatively hard line in the EU copyright negotiations, so it seems unlikely that things will be relaxed very much after Brexit.
shkkmo 7y ago
From reading the opinion, I think the argument goes something like this: > First, LinkedIn does not contest hiQ’s evidence that contracts exist between hiQ and some customers, including eBay, Capital One, and GoDaddy > Second, hiQ will likely be able to establish that LinkedIn knew of hiQ’s scraping activity and products for some time. LinkedIn began sending representatives to hiQ’s Elevate conferences in October 2015 > Third, LinkedIn’s threats to invoke the CFAA and implementation of technical measures selectively to ban hiQ bots could well constitute “intentional acts designed to induce a breach or disruption” of hiQ’s contractual relationships with third parties. > Fourth, the contractual relationships between hiQ and third parties have been disrupted and “now hang[] in the balance.” Without access to LinkedIn data, hiQ will likely be unable to deliver its services to its existing customers as promised. > Last, hiQ is harmed by the disruption to its existing contracts and interference with its pending contracts. Without the revenue from sale of its products, hiQ will likely go out of business. > LinkedIn does not specifically challenge hiQ’s ability to make out any of these elements of a tortious interference claim. Instead, LinkedIn maintains that it has a “legitimate business purpose” defense to any such claim. ... That contention is an affirmative justification defense for which LinkedIn bears the burden of proof. So the real situation is that you can't go out and start blocking access you knew about in a way that would interfer with third party contracts without a legitimate business reason to do so. The burden of proving the legitimacy of that business reason is on you. edit: TLDR; > "A party may not ... under the guise of competition ... induce the breach of a competitor’s contract in order to secure an economic advantage."
- rocqua 7y ago
  So, if you want to block someone from your service, you need to be able to prove that it is for a legitimate business purpose. Moreover it seems, 'this harms a competitor of ours' is not considered a legitimate business purpose, but anti-competitive behavior.
- tomp 7y ago
  That’s quite ... crazy. Be restaurant. Be on Deliveroo. Be getting low margins because of high fees. So basically you can’t decide not to use Deliveroo any more, to improve margina (“secure an exonomic advantage”). I mean, you can cancel Deliveroo, but only as long as you’re not “inducing a breach of their contract”. So only a matter of time before Deliveroo writes a contract “we’re obligated to deliver food for you from said restaurant”.
Xelbair 7y ago
I would argue that under spirit of net neutrality you either serve your site to everyone equally(the public facing part) or to no one. Hosting costs money, servers cost money.. but maybe create a public facing API that is way cheaper and easier to use than scraping your website? I see that ruling in positive light that it might promote more open and structured access to the public facing data.
- eru 7y ago
  Why should you be forced to serve content to people who won't look at your ads?
  - kijin 7y ago
    Anyone is free to put up a paywall and deny access to people who don't pay. But LinkedIn is apparently happy to let Googlebot and bingbot scrape public profiles. If they want to do that, they can't argue that their policy is to block bots who don't click on ads. Discriminating Googlebot from other visitors is probably a violation of Google policies, too. They can't have their cake and eat it at the same time.
  - RobAley 7y ago
    Like disabled users with screen-readers?
    - ehvatum 7y ago
      I suppose we can give them a pass if they solve a bunch of captchas.
- mehrdadn 7y ago
  > under spirit of net neutrality you either serve your site to everyone equally(the public facing part) or to no one Huh? Net neutrality isn't about the server or client... it's about the network operator in between them.
  - 7y ago
hgoel 7y ago
The ruling doesn't seem to say that they can't throttle access atleast.

greatpatton 7y ago

The data are certainly not free of copyright. Data can contain user picture, or even small essay describing the job, life of a user though linkedin is not the copyright holder. Moreover these are personal data, and I'm not sure that the scraper has the original user right to collect the data. In Europe, the scrapper may face issues related to GDPR.

johnny99 7y ago
Facts can't be copyrighted, so such things as whether or not a person worked for a certain company, or went to a certain school, are unprotected, and with this ruling can be scraped, at least in the U.S. Others things common on LinkedIn, as you rightly point out, are protected--but by copyright law, not the CFAA. So a scraper acting in good faith would have to be careful about what they used if they wanted to respect copyright, but it's a separate issue from this ruling. http://www.dmlp.org/legal-guide/works-not-covered-copyright http://www.dmlp.org/legal-guide/works-not-covered-copyright
- torstenvl 7y ago
  This is exactly right. Copyright protects creative expression, not pure fact. Famously, phone books (remember those?) are basically not copyrightable except for the ads, because they're just lists of data. Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
- greatpatton 7y ago
  I never said that fact can be copyrighted, I said that most of the things people put around in their profile can be. I was responding to the claim that the data were not under copyright made above. If you just scrap name, company, position, this is fine, but I highly doubt that they just do that. This lawsuit can have tons of side effects.
  - fauigerzigerk 7y ago
    I think what hiQ does is to predict whether a particular employee is about to quit. So the interesting question to me is whether you can lawfully make predictions based on published information if that information is under copyright. In Europe the answer is probably no, because the assumption is that in order to analyse data you have to copy it first. To me, this interpretation of the term "copying" makes very little sense. So I wonder what US law makes of it.
    - anticensor 7y ago
      Europe has database rights, which has a fair dealing exemption for data analysis.
      - fauigerzigerk 7y ago
        I'm not sure what "database rights" refers to specifically, but the whole matter is actually rather complicated, because the EU copyright directive has a lot of optional exceptions that member states may or may not adopt. Most of these exceptions only apply to non-commercial use though. So they wouldn't apply in a case like hiQ. UK specific exceptions are explained here: https://www.gov.uk/guidance/exceptions-to-copyright https://www.gov.uk/guidance/exceptions-to-copyright Unfortunately, both Labour and the Tories have taken a relatively hard line in the EU copyright negotiations, so it seems unlikely that things will be relaxed very much after Brexit.

shkkmo 7y ago

From reading the opinion, I think the argument goes something like this: > First, LinkedIn does not contest hiQ’s evidence that contracts exist between hiQ and some customers, including eBay, Capital One, and GoDaddy > Second, hiQ will likely be able to establish that LinkedIn knew of hiQ’s scraping activity and products for some time. LinkedIn began sending representatives to hiQ’s Elevate conferences in October 2015 > Third, LinkedIn’s threats to invoke the CFAA and implementation of technical measures selectively to ban hiQ bots could well constitute “intentional acts designed to induce a breach or disruption” of hiQ’s contractual relationships with third parties. > Fourth, the contractual relationships between hiQ and third parties have been disrupted and “now hang[] in the balance.” Without access to LinkedIn data, hiQ will likely be unable to deliver its services to its existing customers as promised. > Last, hiQ is harmed by the disruption to its existing contracts and interference with its pending contracts. Without the revenue from sale of its products, hiQ will likely go out of business. > LinkedIn does not specifically challenge hiQ’s ability to make out any of these elements of a tortious interference claim. Instead, LinkedIn maintains that it has a “legitimate business purpose” defense to any such claim. ... That contention is an affirmative justification defense for which LinkedIn bears the burden of proof. So the real situation is that you can't go out and start blocking access you knew about in a way that would interfer with third party contracts without a legitimate business reason to do so. The burden of proving the legitimacy of that business reason is on you. edit: TLDR; > "A party may not ... under the guise of competition ... induce the breach of a competitor’s contract in order to secure an economic advantage."

rocqua 7y ago
So, if you want to block someone from your service, you need to be able to prove that it is for a legitimate business purpose. Moreover it seems, 'this harms a competitor of ours' is not considered a legitimate business purpose, but anti-competitive behavior.
tomp 7y ago
That’s quite ... crazy. Be restaurant. Be on Deliveroo. Be getting low margins because of high fees. So basically you can’t decide not to use Deliveroo any more, to improve margina (“secure an exonomic advantage”). I mean, you can cancel Deliveroo, but only as long as you’re not “inducing a breach of their contract”. So only a matter of time before Deliveroo writes a contract “we’re obligated to deliver food for you from said restaurant”.

Xelbair 7y ago

I would argue that under spirit of net neutrality you either serve your site to everyone equally(the public facing part) or to no one. Hosting costs money, servers cost money.. but maybe create a public facing API that is way cheaper and easier to use than scraping your website? I see that ruling in positive light that it might promote more open and structured access to the public facing data.

eru 7y ago
Why should you be forced to serve content to people who won't look at your ads?
- kijin 7y ago
  Anyone is free to put up a paywall and deny access to people who don't pay. But LinkedIn is apparently happy to let Googlebot and bingbot scrape public profiles. If they want to do that, they can't argue that their policy is to block bots who don't click on ads. Discriminating Googlebot from other visitors is probably a violation of Google policies, too. They can't have their cake and eat it at the same time.
- RobAley 7y ago
  Like disabled users with screen-readers?
  - ehvatum 7y ago
    I suppose we can give them a pass if they solve a bunch of captchas.
mehrdadn 7y ago
> under spirit of net neutrality you either serve your site to everyone equally(the public facing part) or to no one Huh? Net neutrality isn't about the server or client... it's about the network operator in between them.
- 7y ago

hgoel 7y ago

The ruling doesn't seem to say that they can't throttle access atleast.