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.

> 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.

I suspect Xelbair is making a more expensive definition of net neutrality, taking as a basis the one that says it's about network operators only.

I think you wanted to say more expansive? But it's definitely also more expensive. :D

Yes, I meant expansive. Oops.

That was the case, hence the reference to the "spirit" of net neutrality.

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.

Net neutrality is more about nondiscrimination in routing content from a provider to a user, rather than forcing content providers to serve everyone regardless of conduct. It's entirely reasonable for a site to discriminate who they wish to allow to access their data (whether technically their copyright or data they caretake).

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.

Why should you be forced to serve content to people who won't look at your ads?

Like disabled users with screen-readers?

I suppose we can give them a pass if they solve a bunch of captchas.

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.

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."

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”.

Choosing not to use a middleman any more so that you can secure higher margins sounds like about clearest example of a "legitimate business reason" imaginable. The purpose of the act is to immediately increase your margins, not to hurt Deliveroo because you don't want their competition.

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 would imagine that if you contract with Deliveroo, they have some terms that say that you need to give notice when cancelling?

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.

IANAL, but I think you're misunderstanding "without a legitimate business reason to do so"

"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.

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.

Why does there need to be a legitimate business purpose? What about freedom of speech? It's my website and I'll publish what I want to.

Eh, I think you got this backwards. If you really want to talk about this in terms of freedom of speech, LinkedIn is in the act of censoring?

Edit: What I mean is that freedom of speech is not the same as freedom of censoring.

> 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.

Yes, the court was right to block LinkedIn's abuse of the CFAA. But the court was wrong that say that LinkedIn must show HIQ the same website as LinkedIn shows everyone else.

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

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.

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

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).

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.

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.

Europe has database rights, which has a fair dealing exemption for data analysis.

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

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.

Database rights are a copyright-like intellectual property regime for databases.

"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"

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.