Back in October 2022, the Supreme Court granted certiorari in Gonzalez v. Google, an appeal that challenged whether YouTube’s targeted algorithmic recommendations qualify as “traditional editorial functions” protected by the CDA — or, rather, whether such recommendations are not the actions of a “publisher” and thus fall outside of
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hiQ and LinkedIn Reach Settlement in Landmark Scraping Case
By Jeffrey Neuburger on
UPDATE: On December 8, 2022, the court issued an order granting the Consent Judgment and Permanent Injunction.
On December 6, 2022, the parties in the long-running litigation between now-defunct data analytics company hiQ Labs, Inc. (“hiQ”) and LinkedIn Corp. (“LinkedIn”) filed a Stipulation and Proposed Consent Judgment (the “Stipulation”) with the California district court, indicating that they have reached a confidential settlement agreement resolving all outstanding claims in the case.
This case has been a litigation odyssey of sorts, to the Supreme Court and back: it started with the original district court injunction in 2017, Ninth Circuit affirmance in 2019, Supreme Court vacating of the order in 2021, Ninth Circuit issuing a new order in April 2022 affirming the original injunction, and back again where we started, the lower court in August 2022 issuing an order dissolving the preliminary injunction, and the most recent mixed ruling on November 4th, 2022. It certainly has been one of the most heavily-litigated scraping cases in recent memory and has been closely followed on our blog. Practically speaking, though, the dispute had essentially reached its logical end with the last court ruling in November – hiQ had prevailed on the Computer Fraud and Abuse Act (CFAA) “unauthorized access” issue related to public website data but was facing a ruling that it had breached LinkedIn’s User Agreement due to its scraping and creation of fake accounts (subject to its equitable defenses). …
Data Scraper’s Declaratory Action Seeking Green Light to Scrape LinkedIn Survives Motion to Dismiss
By Jeffrey Neuburger on
On November 15, 2022, a California district court declined to dismiss a declaratory judgment action brought by a data scraper, 3taps, Inc. (“3taps”), against LinkedIn Corp. (“LinkedIn”). (3taps, Inc. v. LinkedIn Corp., No. 18-00855 (N.D. Cal. Nov. 15, 2022)). 3taps is seeking an order to clarify whether the federal Computer Fraud and Abuse Act (CFAA) (or its California state law counterpart) prevents it from accessing and using publicly-available data on LinkedIn, and whether scraping such data would also subject it to an action brought by LinkedIn for breach of contract or trespass.
This is not 3tap’s first experience with scraping litigation (see prior post). But if this dispute sounds strangely familiar and reminiscent of the long-running dispute between hiQ Labs and LinkedIn (which we’ve followed closely), it is. The 3taps action traces its origin, in part, to the original hiQ ruling in August 2017, where this same judge first granted a preliminary injunction in favor of hiQ, enjoining LinkedIn from blocking hiQ’s access to LinkedIn members’ public profiles. Following that ruling, 3taps sent a letter to LinkedIn stating that it also intended to scrape publicly-available data from LinkedIn. LinkedIn responded that while it was not considering legal action against 3taps, it cautioned that “any further access by 3taps to the LinkedIn website and LinkedIn’s servers is without LinkedIn’s or its members’ authorization.” Thus, the hiQ ruling, 3taps’s letter to LinkedIn, and LinkedIn’s reply were the genesis of the current declaratory judgment action filed by 3taps against LinkedIn.[1]…
Court Finds hiQ Breached LinkedIn’s Terms Prohibiting Scraping, but in Mixed Ruling, Declines to Grant Summary Judgment to Either Party as to Certain Key Issues
By Jeffrey Neuburger on
On November 4, 2022, a California district court took up the parties cross-motions for summary judgment in the long-running scraping litigation involving social media site LinkedIn Corp.’s (“LinkedIn”) challenge to data analytics firm hiQ Labs, Inc.’s (“hiQ”) scraping of LinkedIn public profile data. (hiQ Labs, Inc. v. LinkedIn Corp., No. 17-3301 (N.D. Cal. Nov. 4, 2022)). The court mostly denied both parties’ motions for summary judgment on the principal scraping-related issues related to breach of contract and CFAA liability. While the court found that hiQ breached LinkedIn’s User Agreement both through its own scraping of LinkedIn’s site and using scraped data, and through its use of independent contractors (so-called “turkers”), who logged into LinkedIn to run quality assurance for hiQ’s “people analytics” product, there were factual issues surrounding hiQ’s waiver and estoppel defenses to its own scraping activities that foreclosed a judgment in favor of either party on that claim. Similarly, the court found material issues of fact which prevented a ruling on hiQ’s statute of limitations defense to LinkedIn’s claims under the Computer Fraud and Abuse Act (CFAA) based on emails exchanged among LinkedIn staff back in 2014 about hiQ’s activities that may or may not have given LinkedIn constructive knowledge about hiQ’s scraping activities and started the statute of limitations clock.…
Important CDA Section 230 Case Lands in Supreme Court: Level of Protection Afforded Modern Online Platforms at Stake
By Jeffrey Neuburger & Jonathan Mollod on
Since the passage of Section 230 of the Communication Decency Act (“CDA”), the majority of federal circuits have interpreted the CDA to establish broad federal immunity to causes of action that would treat service providers as publishers of content provided by third parties. The CDA was passed in the early days of e-commerce and was written broadly enough to cover not only the online bulletin boards and not-so-very interactive websites that were common then, but also more modern online services, web 2.0 offerings and today’s platforms that might use algorithms to organize, repackage or recommend user-generated content.
Over 25 years ago, the Fourth Circuit, in the landmark Zeran case, the first major circuit court-level decision interpreting Section 230, held that Section 230 bars lawsuits, which, at their core, seek to hold a service provider liable for its exercise of a publisher’s “traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content.” Courts have generally followed this reasoning ever since to determine whether an online provider is being treated as a “publisher” of third party content and thus entitled to immunity under the CDA. The scope of “traditional editorial functions” is at the heart of a case currently on the docket at the Supreme Court. On October 3, 2022, the Supreme Court granted certiorari in an appeal that is challenging whether a social media platform’s targeted algorithmic recommendations fall under the umbrella of “traditional editorial functions” protected by the CDA or whether such recommendations are not the actions of a “publisher” and thus fall outside of CDA immunity. (Gonzalez v. Google LLC, No. 21-1333 (U.S. cert. granted Oct. 3, 2022)).
Unmasking Anonymous Copyright Infringers: Where the DMCA, First Amendment, and Fair Use Meet
By Caroline Rimmer on
Can internet service providers necessarily be compelled to unmask anonymous copyright infringers? In an opinion touching on Digital Millennium Copyright Act (DMCA) subpoenas, First Amendment concerns, and fair use, the Northern District of California said, in this one particular instance, no, granting Twitter’s motion to quash a subpoena seeking to reveal information behind an anonymous poster. (In re DMCA § 512(h) Subpoena to Twitter, Inc., No. 20-80214 (N.D. Cal. June 21, 2022)). The anonymous figure at the center of the dispute is @CallMeMoneyBags, an anonymous Twitter user who posts criticisms of wealthy people—particularly those working in tech, finance, and politics. Some such criticism lies at the heart of this dispute.…
Three Questions Brands Must Ask about Trademarks and the Metaverse
By Peter Cramer, Wai Choy & Jonathan Mollod on
Web 3.0 and the promise of the metaverse has generated excitement about new markets for businesses large and small. But as with any technological frontier, legal uncertainties cause new risks to emerge alongside the opportunities. One area currently full of legal questions is trademark law. We will examine what we…
Taking Cue from the Supreme Court’s Van Buren Decision, Ninth Circuit Releases New Opinion Holding Scraping of Publicly Available Website Data Falls Outside of CFAA
By Jeffrey Neuburger on
On remand from the U.S. Supreme Court, the Ninth Circuit earlier this week again affirmed the lower court’s order preliminarily enjoining LinkedIn Corp. (“LinkedIn”) from blocking data analytics company hiQ Labs, Inc.’s (“hiQ”) access to publicly available LinkedIn member profiles. (hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783 (9th Cir. Apr. 18, 2022)) (“hiQ II”). In what might be considered an emphatic, pro-scraping decision (even more so than its first, now-vacated 2019 decision), the appeals court found that hiQ “raised at least serious questions” that its scraping of public LinkedIn member profile data, even after having had its access revoked and blocked by LinkedIn, is lawful under the federal Computer Fraud and Abuse Act (CFAA).
The panel concluded that the reasoning of last year’s Supreme Court decision in Van Buren v. U.S., which interpreted the “exceeds authorized access” provision of the CFAA, reinforced the Ninth Circuit’s interpretation that the concept of “without authorization” under the CFAA does not apply to public websites. Thus, while the law relating to screen scraping remains unclear in many respects – particularly as scraping technology and the applied uses of public website data continue to evolve – this important new decision by the Ninth Circuit carries the reasoning forward from Van Buren and limits the applicability of the CFAA as a tool against the scraping of publicly available website data.
Last June, following Van Buren and the Supreme Court’s separate ruling vacating and remanding the Ninth Circuit’s prior decision in the hiQ case, we had a few questions about how the appeals court would interpret the CFAA’s “without authorization” provision on remand in light of the so-called “gates up or down” approach to the CFAA espoused by the Supreme Court in Van Buren. In particular, we were waiting to see whether the appeals court would consider a website owner’s technical measures to selectively block a specific entity’s access to public website data as effectively bringing crashing down the “gates” of authorized access (and, with it, potential CFAA liability). The long wait is over and the Ninth Circuit has answered these questions with its pro-scraping, open web interpretation of the CFAA (with respect to public websites). While some additional legal questions remain unanswered in this case, it appears the CFAA “without authorization” issue has been firmly resolved, at least as far as the Ninth Circuit is concerned.
However, though one issue may has been resolved, others remain. As stated in our 2017 Client Alert about the lower court’s hiQ decision, entities engaged in scraping should still tread carefully. As the Ninth Circuit itself says in hiQ II: “Entities that view themselves as victims of data scraping are not without resort, even if the CFAA does not apply.”
Also, of course, this litigation does not involve the also-controversial practice of scraping mobile applications. Because the methodology involved in that type of scraping is significantly different, it is possible that a court could come to a different conclusion with respect to the CFAA in that circumstance.…
In the Coming ‘Metaverse’, There May Be Excitement but There Certainly Will Be Legal Issues
By Jeffrey Neuburger & Jonathan Mollod on
The concept of the “metaverse” has garnered much press coverage of late, addressing such topics as the new appetite for metaverse investment opportunities, a recent virtual land boom, or just the promise of it all, where “crypto, gaming and capitalism collide.” The term “metaverse,” which comes from Neal Stephenson’s 1992 science fiction novel “Snow Crash,” is generally used to refer to the development of virtual reality (VR) and augmented reality (AR) technologies, featuring a mashup of massive multiplayer gaming, virtual worlds, virtual workspaces, and remote education to create a decentralized wonderland and collaborative space. The grand concept is that the metaverse will be the next iteration of the mobile internet and a major part of both digital and real life.
Don’t feel like going out tonight in the real world? Why not stay “in” and catch a show or meet people/avatars/smart bots in the metaverse?
As currently conceived, the metaverse, “Web 3.0,” would feature a synchronous environment giving users a seamless experience across different realms, even if such discrete areas of the virtual world are operated by different developers. It would boast its own economy where users and their avatars interact socially and use digital assets based in both virtual and actual reality, a place where commerce would presumably be heavily based in decentralized finance, DeFi. No single company or platform would operate the metaverse, but rather, it would be administered by many entities in a decentralized manner (presumably on some open source metaverse OS) and work across multiple computing platforms. At the outset, the metaverse would look like a virtual world featuring enhanced experiences interfaced via VR headsets, mobile devices, gaming consoles and haptic gear that makes you “feel” virtual things. Later, the contours of the metaverse would be shaped by user preferences, monetary opportunities and incremental innovations by developers building on what came before.
In short, the vision is that multiple companies, developers and creators will come together to create one metaverse (as opposed to proprietary, closed platforms) and have it evolve into an embodied mobile internet, one that is open and interoperable and would include many facets of life (i.e., work, social interactions, entertainment) in one hybrid space.
In order for the metaverse to become a reality – that is, successfully link current gaming and communications platforms with other new technologies into a massive new online destination – many obstacles will have to be overcome, even beyond the hardware, software and integration issues. The legal issues stand out, front and center. Indeed, the concept of the metaverse presents a law school final exam’s worth of legal questions to sort out. Meanwhile, we are still trying to resolve the myriad of legal issues presented by “Web 2.0,” the Internet we know it today. Adding the metaverse to the picture will certainly make things even more complicated.…
Another NY Court Repudiates Ninth Circuit “Server Test” in Case over Embedded Video
By Jeffrey Neuburger on
On July 30, 2021, a New York district court declined to dismiss copyright infringement claims with respect to an online article that included an “embedded” video (i.e., shown via a link to a video hosted on another site). The case involved a video hosted on a social media platform that made embedding available as a function of the platform. The court ruled that the plaintiff-photographer plausibly alleged that the defendants’ “embed” may constitute copyright infringement and violate his display right in the copyrighted video, rejecting the defendants’ argument that embedding is not a “display” when the image at issue remains on a third-party’s server (Nicklen v. Sinclair Broadcast Group, Inc., No. 20-10300 (S.D.N.Y. July 30, 2021)). Notably, this is the second New York court to decline to adopt the Ninth Circuit’s “server test” first adopted in the 2007 Perfect 10 decision, which held that the infringement of the public display right in a photographic image depends, in part, on where the image was hosted. With this being the latest New York court finding the server test inapt for an online infringement case outside of the search engine context (even if other meritorious defenses may exist), website publishers have received another stark reminder to reexamine inline linking practices.…