However, how is it reasonable to force a web site to serve its contents to a third-party company, without being allowed to make a decision whether to serve it or not? Serving the web site costs money, and the scraper surely isn't going to generate ad income...
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.
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.
Huh? Net neutrality isn't about the server or client... it's about the network operator in between them.
Public facing internet sites, in my opinion, should be treated in same way as public space - anyone should be free to read, and write down in their notepad whatever is there, in the same way as anyone else.
Scraping public facing website in my opinion is huge waste of resources. It would be cheaper(in total) to build an API that can serve the data from it, than to build a good scraper.
That being said, if you provide data to the public, you don't get to invoke the CFAA to plug the holes your content discrimination code doesn't fill.
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.
> 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."
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”.
That's very different from the case in question, where LinkedIn's motive for cutting off hiQ's access is to inflict damage on hiQ because they are a potential competitor.
I don't know Deliveroo, but I think a better analogy would be if you suddenly, even though it is not causing you trouble, denied access to someone picking up food that you didn't contract with, with the full knowledge that the someone would be in big trouble with their customers.
"Be Restaurant" blocking Deliveroo because they can't continue operating with the loss of revenue due to high fees is a legitimate business reason. "Be Restaurant" blocking Deliveroo 2: Electric Boogaloo because I don't like their owner, but continuing to allow Deliveroo access would be, presumably, disallowed.
Also there's nothing stopping "Be Restaurant" from offering an exclusive delivery contract to Deliveroo and forcing Deliveroo 2 out, or requiring a minimum fee for all delivery services, Deliveroo and Deliveroo 2 included.
Of course, I think this is all in a very different area from a restaurant; we're talking about a service provided on the internet. I believe LinkedIn has many, many other recourses here, but, as I see it, the courts are just telling them, this aint it chief.
Moreover it seems, 'this harms a competitor of ours' is not considered a legitimate business purpose, but anti-competitive behavior.
Edit: What I mean is that freedom of speech is not the same as freedom of censoring.
This is at least not quite true of First Amendment law. The concept of "compelled speech" exists in US law, and is considered an unconstitutional violation of the First Amendment. Exactly what falls into that category (and whether the right of domain owners to censor user-provided content as they see fit is protected), I'm not sure, but freedom of speech in the US certainly does at least sometimes include the right not to speak.
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.
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
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.
There's an infinite number of ways to describe a job history, without any single standard, so I don't think it makes any sense to say that a profile or resume is not copyrightable.
I could see the hit from a scraper being heavier than that of a typical user. There's also the potential that a user is going to click an ad for any number of reasons, there isn't that likelihood the scraper will.
I'm not anti-scraping by any means, but I get the concerns.
You're not obliged to have public access.
Is there perhaps a factor here of users having an expectation that their profile is publicly accessible; so companies hosting that profile shouldn't be able to choose _secretly_ "who" can access it?
If you consider scrapers to have some sort of right to access any public website, any technological barriers inflict exactly the same harm as an injunction, assuming it is effective. IF you allow technical blocking, it would be preferable to allow blocking-by-clearly-stated-wish, because it would save everyone the costs of the arms race. It would also make both parties' success somewhat independent of the resources they can invest into outgunning their opponents.
Your statement makes absolutely no sense. That's not how internet works. If you serve something publicly you don't get to cherry pick who sees it.
Not only it makes no sense technically it's also a huge anti-competitive case.
I’m not sure about being anti-competitive. Serving a website is an action in which you open up your resources for others to access. My friend runs an open source stock market tracking website for free. He started getting hit with scrapers from big hedge funds and fintech companies a couple of months back. This costs him around $50-100 a month to serve all of these scrapers.
Could also delay results, offer reduced temporal precision and other things to differentiate use cases.
It is nice to think donation platforms can fund high traffic open source projects, but this is simply not the case.
In any regard, I fear the potential of this ruling limiting developers’ ability to protect their servers and making us all roll over to the big players with their hefty scrapers taking all of our data for resale.
Technically, of course you can identify IP ranges owned by certain entities and restrict their access. That’s trivial, so what do you mean when you say the internet doesn’t work like that?
Legally, there’s plenty of region locked content for copyright and censorship reasons. A distributor might region lock because they don’t have distribution rights in particular regions. Are you saying distributors can’t publish free content at all because they can’t choose who sees it but would be breaking copyright law to publish to everyone? Or a site might region lock because certain content is censored in particular countries. Can you not publish anti-regime articles because a totalitarian country is on the Internet?
The entire world isn’t and shouldn’t be held hostage to the most restrictive laws that exist in the world. And the answer isn’t blocking on the requesting end because that’s technically much harder and blocks much, much more content. So what am I missing?
Edit: Forgot to include the other end of the spectrum. If I, as an individual, host my own site on my own hardware with my own connection that I pay the bandwidth for, can I deny a suspected not network?
This interaction is impossible to be trustless thus every client can only be served based on their IP or some convoluted, hack exchange that is cat-and-mouse game at best.
If LinkedIn wants to block access they need to do so by another means that isn’t described as hacking.
I know it is a generally considered bad form to ask, but did you read much of the ruling? I feel like a lot of people on this thread are just going off of Animats' comment and haven't spent much time looking at the opinion.
I didn't read the whole thing, but skimmed through it and read what seemed to be the relevant parts of the argument. (Including the bit that talks about LinkedIn's robots.txt)
The ruling doesn't really support your claim of catastrophe and doesn't claim to pass any sort of final judgement.
The judge makes a specific point about not reading too much into him upholding the injunction saying:
>> These appeals generally provide “little guidance” because “of the limited scope of our review of the law” and “because the fully developed factual record may be materially different from that initially before the district court.”
Which seems fair its public or its not, you can't pick and choose who its public for and who is a second class citizen.
it's a good point you bring up, and may contribute to the death of ads.
The problem is that someone would have to sue google first and no one will do that unless there's big business incentive and big business can already scrape the shit out of google.
This is the weird thing about web-scraping. Big companies can get around protections quite easily - it's the small scripts and average users that get hurt by them. No one is going to tell you this because people would stop buying Cloudflare's "anti-bot 99% effective anti-ddos money saving package" which is complete bullshit.
Also, their own robots.txt contains "Disallow: /search". So, there is arguably no inconsistency, either.
But, what does this new ruling mean for robots.txt?
Robots.txt isn't something that bars access to information. It's just a notice that the administrator does not want large amounts of queries against certain resources.
Many times Robots.txt are implemented with the interest of barring access to information.
This works by relying on scrapers respecting the file, but it's no different than a no-loitering sign which itself cannot actively stop someone who is loitering.
Google doesn't have a Robots.txt disallowing search because it can't handle a large amount of queries against a resource...
Do you have a source for that claim?
https://www.google.ca/amp/s/www.searchenginejournal.com/goog...
Also robots.txt is bullshit, if a person can access a public website why automated script shouldn't - technically speaking it's the same thing.
Imagine you have a piece of information that your neighbors in town come to you for every once in a while. They come over every now and again, ask you for it, maybe even bring you cookies for the trouble, and you provide it.
Then there's Ted.
Ted is insatiable. He hounds you at every minute of your day, constantly asking you the same question over and over. You've done everything you can. You tried to reason with Ted. You tried to contact whoever it is that brought Ted to your neighborhood. You even got so desperate, you moved a few houses down to escape the incessant hounding. That only worked for a little while though, and Ted found you again.
So you tried to stop answering the door; no use, he pokes his head in every time you're in the garage. You demanded people identify themselves first. Oh well, it's changed little. Now he just names himself gibberish names before hounding you for the same things over and over again.
This would not by any stretch of the imagination be acceptable behavior between two people. The main factor in determination for a court injunction would likely be physical trespass, or public nuisance; but no digital equivalent exists currently other than the CFAA, in the sense that in as much as one can prove that the access to the system is inconsistent with the intent or legal terms of providing a service, one may seek relief.
The problem is, LinkedIn has failed to make a convincing argument in the eyes of the appellate court that hiQ's Ted is violating the CFAA while LinkedIn has proactively engaged in activity disrupting hiQ's ability to do business; business which was consistent with the service granted to unknown members of the public at large.
In the Court's eyes, from the sounds of it, it appears LinkedIn is doing the greater harm.
What it looks like to me is this is setting up a common law framework that is going to cause website/service providers to have to choose from the get-go what their relationship to the Net is.
Are you just a transitor providing a service over the Net to a limited, select clientele bound by very specific terms of service? Then you may have a leg to stand on in fending off malignant Teds, but your exposure and onboarding will need to have concomitant friction to make the case to the Court that these Teds were never meant to be serviced in the first place.
Or, are you providing a public content portal, meant to make things accessible to everyone, with minimal terms? In which case, no legal Ted relief for you!
Just because it is your "syatem' and it isn't connected to your nervous system, does not mean it isn't capable of being caused harm to, or inflicting harm on someone else with careless muckery.
The one thing that disturbs me most is how the Court has disregarded the chilling effect that interpreting a duty to maintaining visibility may incur. A First Amendment challenge may end up being the inevitable result of this legal proceeding.
I however sometimes want to look up people. Or would this be a case of wanting to have my cake and eat it?
If the case is decided in favour of hiQ, then, absent an injunction, what would prevent a website from blocking a scraper? Maybe the website could still block unless and until the scraper gets her lawyers to file an injunction.
Another interpretation is that if hiQ wins, then in the 9th Circuit's jurisdiction websites serving public information they neither own nor exclusively license may no longer try to to use the CFAA and/or copyright law to threaten scrapers.
The question being: if just having access to the network isn't enough to grant you access to the data of a specific profile, but instead you have to aggregate samples from a bunch of people in the network in order to see "through their eyes" to the data on the profiles of their friends and friends-of-friends, is that allowed?
Because, if even that was allowed, that'd surely open a different kind of floodgate.
Page 31 of the filing specifically differentiates this case from one regarding Facebook:
"While Power Ventures was gathering user data that was protected by Facebook’s username and password authentication system, the data hiQ was scraping was available to anyone with a web browser."
Twitter is the only example I can think of among the large social media sites that doesn't require you to be logged in to see profiles
My memory might be misleading me here, but I think I remember years ago in one case I could see less info about a profile when logged in to my account than I could see while logged out and navigating from a Google search...
It should have said only that there is nothing judicially wrong with scraping but also not limited the rights of a service.
This is insane. It really should have just said that "it's legal to scrape" but it shouldn't have said "and you can't stop that".
Well that's not automated, and slightly more costly but it gets you pretty close to the same effect.
So LinkedIn is prohibited from blocking hiQ's access by technical means. That's a strong holding. If this case is eventually decided in favor of hiQ, scrapers can no longer be blocked. Throttled a little, maybe, but no more than other users doing a comparable query rate.