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Case Number: 17-16783
Judge: Marsha S. Berzon
Court: United States Court of Appeals for the Ninth Circuit (San Francisco County)
Plaintiff's Attorney: Gary Kaplan
Defendant's Attorney: Annette Hurst
Description: San Francisco, California intellectual property lawyers represented the parties in a copyright dispute.
H1Q sought a preliminary injunction against Linkedin Corporation to prohibit it from denying H1Q access to publicly available member files on Linkedin's professional networking website.
Linkedin appealed the issuance of a preliminary injunction.
The Ninth Circuit affirmed and Linkedin sought review by the Supreme Court, which declined to grant cert.
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 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
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
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
Outcome: The panel affirmed the district court’s determination that
hiQ had established the elements required for a preliminary
injunction and remanded for further proceedings.