HIQ LABS, INC. V. LINKEDIN CORPORATION, No. 17-16783 (9th Cir. 2022)
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LinkedIn Corp. sent hiQ Labs, Inc. ("hiQ") a cease-and-desist letter, asserting that hiQ violated LinkedIn’s User Agreement. LinkedIn asserted that if hiQ accessed LinkedIn’s data in the future, it would be violating state and federal law, including the CFAA, the Digital Millennium Copyright Act (“DMCA”) and the California common law of trespass.
HiQ sought injunctive relief and a declaratory judgment that LinkedIn could not lawfully invoke the CFAA, the DMCA, California Penal Code Sec. 502(c), or the common law of trespass against it. LinkedIn appealed the district court’s decision ordering LinkedIn to withdraw its cease-and-desist letter, to remove any existing technical 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.
The court affirmed the district court, finding that hiQ currently had no viable way to remain in business other than using LinkedIn public profile data for its “Keeper” and “Skill Mapper” analytics services and that hiQ demonstrated a likelihood of irreparable harm absent a preliminary injunction. The court found that the district court properly determined that the balance of hardships tipped in hiQ’s favor. The court concluded that hiQ showed a sufficient likelihood of establishing the elements of its claim for contract interference, and it raised a question on the merits of LinkedIn’s affirmative justification defense. Finally, the court found that the district court properly determined that the public interest favored hiQ’s position.
Court Description: Preliminary Injunction / Computer Fraud and Abuse Act On remand from the United States Supreme Court, the panel affirmed the district court’s order preliminarily enjoining LinkedIn Corp. from denying hiQ Labs, Inc., a data analytics company, access to publicly available member profiles on LinkedIn’s professional networking website. The panel previously affirmed the preliminary injunction. The Supreme Court granted certiorari, vacated the panel’s judgment, and remanded for further consideration in light of Van Buren v. United States, 141 S. Ct. 1648 (2021). On remand, the panel again affirmed the preliminary injunction, concluding that Van Buren reinforced its determination that hiQ had raised serious questions about whether LinkedIn may invoke the Computer Fraud and Abuse Act (“CFAA”) to preempt hiQ’s possibly meritorious tortious interference claim. The panel held that a plaintiff seeking a preliminary injunction must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest. The court uses a “sliding scale” approach to these factors, so that when the balance of hardships tips sharply in the plaintiff’s favor, it need demonstrate only serious questions going to the merits. Applying this approach, the district HIQ LABS V. LINKEDIN 3 court concluded that the balance of hardships tipped sharply in hiQ’s favor and that hiQ raised serious questions on the merits. The panel held that the district court did not abuse its discretion in concluding on the preliminary injunction record that hiQ currently had no viable way to remain in business other than using LinkedIn public profile data for its “Keeper” and “Skill Mapper” analytics services, and that hiQ therefore had demonstrated a likelihood of irreparable harm absent a preliminary injunction. The panel concluded that the district court properly determined that the balance of hardships tipped sharply in hiQ’s favor, when weighing the likelihood that hiQ would go out of business against LinkedIn’s assertion that an injunction threatened its members’ privacy and therefore put at risk the goodwill that LinkedIn had developed with its members. The panel concluded that hiQ showed a sufficient likelihood of establishing the elements of its claim for intentional interference with contract, and it raised a serious question on the merits of LinkedIn’s affirmative justification defense. Further, hiQ raised serious questions about whether LinkedIn could invoke the CFAA to preempt hiQ’s possibly meritorious tortious interference claim. The CFAA prohibits accessing a “protected computer” without authorization. The panel concluded that to scrape LinkedIn data, hiQ needed to access LinkedIn servers, which were “protected computers.” At issue was whether, once hiQ received LinkedIn’s cease-and-desist letter, any further scraping and use of LinkedIn’s data was “without authorization” within the meaning of the CFAA. The panel concluded that hiQ raised a serious question as to whether 4 HIQ LABS V. LINKEDIN the CFAA “without authorization” concept is inapplicable where, as here, prior authorization is not generally required but a particular person—or bot—is refused access. The panel concluded that the reasoning of Van Buren reinforced its interpretation of the CFAA, although Van Buren did not directly address the CFAA’s “without authorization” clause, but rather considered the statute’s “exceeds authorized access” clause. Finally, the panel concluded that the district court properly determined that, on balance, the public interest favored hiQ’s position. The panel affirmed the district court’s determination that hiQ had established the elements required for a preliminary injunction and remanded for further proceedings. HIQ LABS V. LINKEDIN 5
This opinion or order relates to an opinion or order originally issued on September 9, 2019.