D.C. No. 3:17-cv-03301-EMC. OPINION. Appeal from the United States District Court for the Northern District of California. Edward M. Chen, District Judge,
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HIQ LABS , INC., Plaintiff -Appellee , v. LINKED IN CORPORATION , Defendant -Appellant. No. 17-16783 D.C. No. 3:17 -cv-03301-EMC OPINION Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding Argued and Submitted March 15, 2018 San Francisco, California Filed September 9, 2019 Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Terrence Berg, * District Judge. Opinion by Judge Berzon ; Concurrence by Judge Wallace * The Honorable Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by designation.
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2 HIQ LABS V . LINKED IN SUMMARY ** Preliminary Injunction / Computer Fraud and Abuse Act The panel affirmed the district court™s preliminary injunction forbidding the professional networking website LinkedIn Corp. from denying plaintiff hiQ, a data analytics company, access to publicly available LinkedIn member profiles. Using automated bots, hiQ scrapes information that LinkedIn users have included on public LinkedIn profiles. LinkedIn sent hiQ a cause -and -desist letter, demanding that hiQ stop accessing and copying data from LinkedIn™s server. HiQ filed suit, seeking injunctive relief based on California law and a declaratory judgment that LinkedIn could not lawfully invoke the Computer Fraud and Abuse Act (ﬁCFAAﬂ), the Digital Millennium Copyright Act, California Penal Code § 502(c), or the common law of trespass aga inst it. Affirming the district court™s grant of the preliminary injunction in favor of hiQ, the panel concluded that hiQ established a likelihood of irreparable harm because the survival of its business was threatened. The panel held that the district court did n ot abuse its discretion in balancing the equities and concluding that, even if some LinkedIn users retain some privacy interests in their information notwithstanding their decision to make their profiles public, ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
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HIQ LABS V . LINKED IN 3 those interests did not outweigh hiQ™s inter est in continuing its business. Thus, the balance of hardships tipped decidedly in favor of hiQ. The panel further held that hiQ raised serious questions going to (1) the merits of its claim for tortious interference with contract, alleging that Linke dIn intentionally interfered with its contracts with third parties, and (2) the merits of LinkedIn™s legitimate business purpose defense. HiQ also raised a serious question as to whether its state law causes of action were preempted by the CFAA, which pro hibits intentionally accessing a computer without authorization, or exceeding authorized access, and thereby obtaining information from any protected computer. LinkedIn argued that, once hiQ received its cause -and -desist letter, any further scraping and u se of LinkedIn™s data was without authorization within the meaning of the CFAA. The panel concluded that hiQ had raised a serious question as to whether the CFAA™s reference to access ﬁwithout authorizationﬂ limits the scope of statutory coverage to compu ter information for which authorization or access permission, such as password authentication, is generally required. Finally, the panel held that the district court™s conclusion that the public interest favored granting the preliminary injunction was ap propriate. Specially concurring, Judge Wallace wrote that he concurred in the majority opinion. He wrote separately to express his concern about appealing from a preliminary injunction to obtain an appellate court™s view of the merits.
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4 HIQ LABS V . LINKED IN COUNSEL Donald B. Ver rilli Jr. (argued) and Chad I. Golder , Munger Tolles & Olson LLP, Washington, D.C. ; Jonathan H. Blavin, Rosemarie T. Ring, Nicholas D. Fram, and Elia Herrera, Munger Tolles & Olson LLP, San Francisco, California; E. Joshua Rosenkranz, Orrick Herring ton & Sutcliffe LLP, New York, New York; Eric A. Shumsky, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Brian P. Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco, California; for Defendant -Appella nt. C. Brandon Wisoff (argued), Deepak Gupt a, Jeffrey G. Lau, and Rebecca H. Stephens, Farella Braun & Martel LLP, San Francisco, California ; Aaron M. Panner, Gregory G. Rapawy, and T. Dietrich Hill, Kellogg Hansen Todd Figel & Frederick PLLC, Washington, D.C.; Laurence H. Tribe, Cambridge, Massach usetts; for Plaintiff -Appellee. Nicholas J. Boyle, John S. Williams, and Eric J. Hamilton, Williams & Connolly LLP, Washington, D.C., for Amicus Curiae Co Star Group Inc. Perry J. Viscounty, Latham & Watkins LLP, San Francisco, California; Gregory G. Garr e, Latham & Watkins LLP, Washington, D.C.; for Amicus Curiae Craigslist Inc. Marc Rotenberg and Alan Butler, Electronic Privacy Information Center, Washington, D.C., for Amicus Curiae Electronic Privacy Information Center. Thomas V. Christopher, Law Offices of Thomas V. Christopher, San Francisco, California, for Amicus Curiae 3taps Inc.
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HIQ LABS V . LINKED IN 5 Jamie Williams, Corynne McSherry, Cindy Cohn, and Nathan Cardozo, Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electr onic Frontier Foundation, DuckDuckGo, and Internet Archive. Kenneth L. Wilton and James M. Harris, Seyfarth Shaw LLP, Los Angeles, California; Carrie P. Price, Seyfarth Shaw LLP, San Francisco, California; for Amicus Curiae Scraping Hub Ltd. OPINION BERZON, Circuit Judge: May LinkedIn, the professional networking website, prevent a competitor, hiQ, from collecting and using information that LinkedIn users have shared on their public profiles, available for viewing by anyone with a web browser? HiQ, a data analytics company, obtained a preliminary injunction forbidding LinkedIn from denying hiQ access to publicly available LinkedIn member profiles. At this preliminary injunction stage, we do not resolve the companies™ legal dispute definitively, nor do we address all the claims and defenses they have pleaded in the district court. Instead, we focus on whether hiQ has raised serious questions on the merits of the factual and legal issues presented to us, as well as on the other requisites for prel iminary relief. I. Founded in 2002, LinkedIn is a professional networking website with over 500 million members. Members post resumes and job listings and build professional ﬁconnectionsﬂ with other members. LinkedIn specifically
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6 HIQ LABS V . LINKED IN disclaims ownership of the information users post to their personal profiles: according to LinkedIn™s User Agreement, members own the content and information they submit or post to LinkedIn and grant LinkedIn only a non -exclusive license to ﬁuse, copy, modify, distribute, publish, and processﬂ that information. LinkedIn allows its members to choose among various privacy settings. Members can specify which portions of their profile are visible to the general public (that is, to both LinkedIn members and nonmembers), and which portion s are visible only to direct connections, to the member™s ﬁnetworkﬂ (consisting of LinkedIn members within three degrees of connectivity), or to all LinkedIn members. 1 This case deals only with profiles made visible to the general public. LinkedIn also off ers all members Šwhatever their profile privacy settings Ša ﬁDo Not Broadcastﬂ option with respect to every change they make to their profiles. If a LinkedIn member selects this option, her connections will not be notified when she updates her profile inform ation, although the updated information will still appear on her profile page (and thus be visible to anyone permitted to view her profile under her general privacy setting). More than 50 1 Direct connections (or first -degree connections) are people to whom a LinkedIn member is conn ected by virtue of having invited them to connect and had the invitation accepted, or of having accepted their invitation to connect. Second -degree connections are people connected to a member™s first -degree connections. Third -degree connections are people connected to a member™s second -degree connections. A LinkedIn member™s network consists of the member™s first -degree, second -degree, and third -degree connections, as well as fellow members of the same LinkedIn Groups (groups of members in the same industr y or with similar interests that any member can request to join).
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8 HIQ LABS V . LINKED IN restrict automated scraping. 3 For exampl e, LinkedIn™s Quicksand system detects non -human activity indicative of scraping; its Sentinel system throttles (slows or limits) or even blocks activity from suspicious IP addresses; 4 and its Org Block system generates a list of known ﬁbadﬂ IP addresses s erving as large -scale scrapers. In total, LinkedIn blocks approximately 95 million automated attempts to scrape data every day, and has restricted over 11 million accounts suspected of violating its User Agreement, 5 including through scraping. HiQ is a dat a analytics company founded in 2012. Using automated bots, it scrapes information that LinkedIn users 3 Scraping involves extracting data from a website and copying it into a structured format, allowing for data manipulation or analysis. See, e.g. , What Is a Screen Scraper? , WiseGeek, http://www.wisegeek. com/what -is-a-screen -scraper.htm (last visited July 12, 2019). Scraping can be done manually, but as in this case, it is typically done by a web robot or ﬁbot.ﬂ See supra note 2. 4 ﬁIP addressﬂ is an abbreviation for Internet protocol address, which is a numerical identifier for each compu ter or network connected to the Internet. See Definition of ﬁIP Address,ﬂ Merriam -Webster Dictionary, https://www.merriam -webster.com/dictionary/IP%20address (last visited July 12, 2019). 5 Section 8.2 of the LinkedIn User Agreement to which hiQ agreed sta tes that users agree not to ﬁ[s]crape or copy profiles and information of others through any means (including crawlers, browser plugins and add -ons, and any other technology or manual work),ﬂ ﬁ[c]opy or use the information, content or data on LinkedIn in c onnection with a competitive service (as determined by LinkedIn),ﬂ ﬁ[u]se manual or automated software, devices, scripts robots, other means or processes to access, ‚scrape,™ ‚crawl™ or ‚spider™ the Services or any related data or information,ﬂ or ﬁ[u]se b ots or other automated methods to access the Services.ﬂ HiQ is no longer bound by the User Agreement, as LinkedIn has terminated hiQ™s user status.
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HIQ LABS V . LINKED IN 9 have included on public LinkedIn profiles, including name, job title, work history, and skills. It then uses that information, along with a proprietary pr edictive algorithm, to yield ﬁpeople analytics,ﬂ which it sells to business clients. HiQ offers two such analytics. The first, Keeper, purports to identify employees at the greatest risk of being recruited away. According to hiQ, the product enables employ ers to offer career development opportunities, retention bonuses, or other perks to retain valuable employees. The second, Skill Mapper, summarizes employees™ skills in the aggregate. Among other things, the tool is supposed to help employers identify skil l gaps in their workforces so that they can offer internal training in those areas, promoting internal mobility and reducing the expense of external recruitment. HiQ regularly organizes ﬁElevateﬂ conferences, during which participants discuss hiQ™s busines s model and share best practices in the people analytics field. LinkedIn representatives participated in Elevate conferences beginning in October 2015. At least ten LinkedIn representatives attended the conferences. LinkedIn employees have also spoken at E levate conferences. In 2016, a LinkedIn employee was awarded the Elevate ﬁImpact Award.ﬂ LinkedIn employees thus had an opportunity to learn about hiQ™s products, including ﬁthat [one of] hiQ™s product[s] used data from a variety of sources Šinternal and external Što predict employee attritionﬂ and that hiQ ﬁcollected skills data from public professional profiles in order to provide hiQ™s customers information about their employees™ skill sets.ﬂ In recent years, LinkedIn has explored ways to capitalize on the vast amounts of data contained in LinkedIn profiles by marketing new products. In June 2017, LinkedIn™s Chief
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10 HIQ LABS V . LINKED IN Executive Officer (ﬁCEOﬂ), Jeff Weiner, appearing on CBS, explained that LinkedIn hoped to ﬁleverage all this extraordinary data we™ve been able to collect by virtue of having 500 million people join the site.ﬂ Weiner mentioned as possibilities providing employers with data -driven insights about what skills they will need to grow and where they can find employees with those skills. Since then, Link edIn has announced a new product, Talent Insights, which analyzes LinkedIn data to provide companies with such data -driven information. 6 In May 2017, LinkedIn sent hiQ a cease -and -desist letter, asserting that hiQ was in violation of LinkedIn™s User Agreem ent and demanding that hiQ stop accessing and copying data from LinkedIn™s server. The letter stated that if hiQ accessed LinkedIn™s data in the future, it would be violating state and federal law, including the Computer Fraud and Abuse Act (ﬁCFAAﬂ), the D igital Millennium Copyright Act (ﬁDMCAﬂ), California Penal Code § 502(c), and the California common law of trespass. The letter further stated that LinkedIn had ﬁimplemented technical measures to prevent hiQ from accessing, and assisting others to access, LinkedIn™s site, through systems that detect, monitor, and block scraping activity.ﬂ 6 The record does not specifically name Talent Insights, but at a district court hearing on June 29, 2017, c ounsel for hiQ referenced Mr. Weiner™s statements on CBS and stated that ﬁin the past 24 hours we™ve received word . . . that LinkedIn is launching a product that is essentially the same or very similar to [hiQ™s] Skill Mapper, and trying to market it head -to-head against us.ﬂ LinkedIn has since launched Talent Insights, which, among other things, promises to help employers ﬁunderstand the . . . skills that are growing fastest at your company.ﬂ See https://business.linkedin.com/talent -solutions/blog/product -updates/201 8/linkedin -talent -insights -now-available (last visited July 12, 2019).
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HIQ LABS V . LINKED IN 11 HiQ™s response was to demand that LinkedIn recognize hiQ™s right to access LinkedIn™s public pages and to threaten to seek an injunction if LinkedIn refused. A week later, hiQ filed suit, seeking injunctive relief based on California law and a declaratory judgment that LinkedIn could not lawfully invoke the CFAA, the DMCA, California Penal Code § 502(c), or the common law of trespass against it. HiQ also filed a request for a temporary restraining order, which the parties subsequently agreed to convert into a motion for a preliminary injunction. The district court granted hiQ™s motion. It ordered LinkedIn to withdraw its cease -and -desist letter, to remove any existing techni cal barriers to hiQ™s access to public profiles, and to refrain from putting in place any legal or technical measures with the effect of blocking hiQ™s access to public profiles. LinkedIn timely appealed. II. ﬁA plaintiff seeking a preliminary injunction m ust establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.ﬂ Winter v. Nat. R es. Def. Council, Inc. , 555 U.S. 7, 20 (2008). All four elements must be satisfied. See, e.g. , Am. Trucking Ass™n v. City of Los Angeles , 559 F.3d 1046, 1057 (9th Cir. 2009). We use a ﬁsliding scaleﬂ approach to these factors, according to which ﬁa stronge r showing of one element may offset a weaker showing of another.ﬂ Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011). So, when the balance of hardships tips sharply in the plaintiff™s favor, the plaintiff need demonstrate only ﬁ serious questions going to the merits.ﬂ Id. at 1135.
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