What does the new judgment in the case of hiQ Labs, Inc. v LinkedIn Corp mean for web data extraction? We investigate the latest developments and explain the current legal status of web scraping ⚖️
A new judgment in the case of hiQ Labs, Inc. v. LinkedIn Corp emerged recently. What does it mean for web scraping? How does it relate to the previous judgment of the US Ninth Circuit Court of Appeals that affirmed the legality of public data scraping?
LinkedIn presents the new judgment as a "major win [...] affirming LinkedIn's legal positions against hiQ for the past six years". From reading the statement, one may get the impression that LinkedIn won the whole dispute and the proceedings ended or that the previous judgment in which hiQ succeeded was overruled. Let's not get misled. It is true that LinkedIn won in the vast majority of the claims that were subject to this particular decision. However, the decision was not final; not all claims have been decided, and the previous precedent was not overruled.
The important thing to highlight is that the new judgment does not replace the previous decisions. Instead, each judgment decides different legal questions.
The Ninth Circuit's Opinion of April 18, 2022
The decision created an important precedent by confirming that one cannot be criminally liable for scraping publicly available data.
Before the decision made this clear, it used to be a common claim that web scraping violates the Computer Fraud and Abuse Act (CFAA). CFAA is an anti-hacking act that criminalizes accessing protected computers without having the authorization to do so. The court held that this concept does not apply to accessing public websites. It stated that a defining feature of public websites is their lack of limitations on access. Therefore accessing such publicly available data cannot be unauthorized, according to a correct reading of the CFAA.
Procedurally, in the context of the hiQ v LinkedIn case, the court here confirmed its final decision on hiQ's motion for a preliminary injunction. (Note: the preliminary injunction is no longer in place after hiQ ceased its relevant business activities.)
The District Court's Judgment of October 27, 2022
According to the new judgment, the court decided on several claims made by parties, mostly regarding contractual obligations.
The court held that provisions of the contract between hiQ and LinkedIn prohibiting scraping and the creation of fake accounts were breached by hiQ. The consequences and a few other related legal questions remain undecided and pending further proceedings. The court also decided that LinkedIn's actions which severely damaged hiQ's client relationships and eventually crushed their business were not unlawful as LinkedIn took all these steps to protect its rights in anticipation of litigation. Another decision the court made was to award sanctions for not preserving evidence according to the law.
Procedurally, the decisions addressed parties' motions for summary judgment. Summary judgment is a type of judgment used by the court for claims that are clear enough to be decided early in the proceedings instead of waiting for a trial. The decision is therefore not meant to and does not cover the whole dispute between the parties, but only some sufficiently clear legal questions.
The impact on web scraping
What does the new judgment mean for the legality of web scraping? Not much has changed. The previous landmark decision remains valid, and the latest decision does not bring any groundbreaking news for web scraping.
Related ➡️ What is ethical web scraping and how do you do it? 5 principles of web scraping ethics
It is probably not that useful to analyze the details of the contractual language and factual nuances that, in this case, led to the breach of contract. Nonetheless, it is a good reminder that, in practice, when scraping, you need to think about whether you have a contract in place. That often happens when you sign in to a website and are asked to read and accept the website's terms and conditions. The terms can include limitations on or even prohibit web scraping altogether. Always be extra careful when you scrape behind a login.
Not all terms of use create a valid contract ➡️ Find out when terms of use are enforceable
Afterthoughts
It is good to see that web scraping case law is gradually emerging. It is certainly needed. It is, however, a pity that in the contractual area of web scraping prohibitions in terms of use and selective denial of access to public websites for certain companies (competitors), the courts tend to limit their analysis to the language of the contract provisions. It would be worth deliberating more on whether it is even legal and constitutional to selectively prevent some from accessing otherwise public platforms available to all.