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To my understanding, the lawsuit against hiQ from Linked-In is about being able to scrape publicly available information from sites. Would that generalize so that if Linked-In loses the web scraping lawsuit to hiQ, other companies like Google will also be open for public webscraping since they have public facing results and data?

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    I have to imagine this will depend on the exact reasoning the court will use and potentially what kind of Google data you're talking about (Google has a lot of it...)
    – DPenner1
    Feb 22, 2018 at 14:05
  • The HiQ restraining order adds some disturbing potential issues to hosting a successful public website that a competitor wants to take advantage of, thats for sure - LinkedIn not being able to choose who can visit their website essentially blurs the boundary between company and public service. I hope that, regardless of what the ultimate ruling is, the restraining order goes away and LinkedIn can once again control access to their website.
    – user4210
    Jul 10, 2019 at 21:44

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The court system has repeatedly ruled both ways in scraping cases, such as when the court ruled in Facebook's favor in Facebook v. Power Ventures (2009).

If, in this case, LinkedIn loses its appeal against hiQ, that will undoubtedly strengthen scrapers' legal position, but will also likely not resolve the thorny legal issue around scraping, since so many conflicting decisions exist already; that will only be accomplished via new legislation.

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The Ninth Circuit Court of Appeals ruled on this last week (case PDF link), and LinkedIn did indeed lose. The main question was whether hiQ was accessing LinkedIn data "without authorization" as defined in the Computer Fraud and Abuse Act (CFAA).

Orin Kerr has a good write-up which I recommend reading in full, I'll just quote his summary here:

The Ninth Circuit views the CFAA has [sic] a hacking statute (like Nosal I did), and it presumes a right to open access under the CFAA unless there is some technological measure placed on access. Because HiQ did not circumvent a technological access measure to get to the data publicly posted on LinkedIn's website, the CFAA was not violated.

and

the Ninth Circuit law right now seems to go like this. You can scrape a public website, and you can violate terms of service, without violating the CFAA. However, you can only access non-public areas of a computer if you haven't had your access rights canceled before, either through a cease-and-desist letter or through the relationship ending that had granted you access rights.

Basically, since the LinkedIn data was publicly available (not password protected), no authorization is needed to access it and so the web scraping is legal.

However, this is likely far from the last case we'll see with web scraping. There's at least three caveats in the decision that could still be explored:

  • LinkedIn's defense was based primarily on CFAA violation, but as the court noted (pgs. 34-35):

    state law trespass to chattels claims may still be available. And other causes of action, such as copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract, or breach of privacy, may also lie.

  • The case was hiQ seeking a preliminary injunction, for which hiQ only needed to show a likelihood of success.

  • There's a circuit split on the interpretation of CFAA's "without authorization" clause which only the Supreme Court could resolve (I didn't check whether LinkedIn is appealing or not).

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