What does the summary judgment granted to Linkedin in the famous Linkedin-HiQ Labs case teach us about data scraping in the US?

Here are some of my thoughts on what the U.S. District Court for the Northern District of California ruling means.

Bottom line:

  1. Summary judgment was granted to LinkedIn regarding: (a) tortious interference claims by HiQ and (b) HiQ’s use of “turkers” (that created false profiles on LinkedIn).
  2. The case continues with a number of issues still TBD due to genuine dispute of facts including: (a) the breach of contract claim as to HiQ’s scraping and unauthorized use of data and (b) whether LinkedIn knew or should have known that HiQ scraped LinkedIn’s site before June 7, 2015.

Some actionable things for companies and practitioners:

A. Publicly available data is NOT a free for all

  1. Informing members that their data may be seen, copied or used (in line with its “public” status) does not contradict a prohibition against scraping, crawling or spidering the server.
  2. A warning to members that a third party may collect their public-facing data is not a blessing for third parties to do so through expressly prohibited means.

B. If your scraping/data mining actions are a breach of the platform’s Terms of Use, this is a problem

  1. If you have clear prohibitions in the user agreement, that counts in your favor. It is important to make them as tight as possible, though, both with clear drafting and by making sure there are no inconsistent provisions. It is stronger if you address both the prohibition of the scraping and the prohibition on third parties (as opposed to members or visitors) re-publishing posts beyond the service.
  2. If you are scraping through the use of user accounts (especially false account), this makes the situation worse and is a clear violation of most Terms of Use provisions (that prohibit creating false identities).
  3. You cannot escape liability by trying to impose it on your independent contractors. If you retain a high degree of control over the independent contractors, they are your agents and represent you (in the scraping actions).
  4. For a breach of Terms of Use (which is a breach of contract), nominal damages can support a judgment in favor of a plaintiff who suffered “no appreciable harm.”
  5. The summary judgment doesn’t address this, but Linkedin also had technical measures to limit scraping which were circumvented. That also increases the stakes for liability.

C. Put your conduct where your Terms of Use are:

  1. If you have contractual prohibitions in your Terms of Use, make sure that your business conduct does not otherwise signal that scraping is permitted.
  2. If your Terms of Use have the prohibition, then the fact that you choose not to enforce the agreement in a lawsuit does not contradict or render ambiguous the unambiguous terms of the Agreement (nor detracts from its validity).