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HiQ Labs, Inc. v. LinkedIn Corp.

United States Court of Appeals for the Ninth Circuit

March 15, 2018, Argued and Submitted, San Francisco, California; September 9, 2019, Filed

No. 17-16783


 [*989]  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 preliminary relief.

Founded in 2002, LinkedIn is a professional networking website with over 500 million members. Members post resumes and job listings and build professional "connections" with other members. LinkedIn  [*990]  specifically disclaims ownership of the information users post to their personal profiles: according to LinkedIn's User Agreement, members own the content and information they [**6]  submit or post to LinkedIn and grant LinkedIn only a non-exclusive license to "use, copy, modify, distribute, publish, and process" 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 portions are visible only to direct connections, to the member's "network" (consisting of LinkedIn members within three degrees of connectivity), or to all LinkedIn members.3 This case deals only with profiles made visible to the general public.

LinkedIn also offers all members—whatever their profile privacy settings—a "Do Not Broadcast" 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 information, 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 million LinkedIn members have, at some point, elected to employ the "Do Not Broadcast" feature, and approximately 20 percent of [**7]  all active users who updated their profiles between July 2016 and July 2017—whatever their privacy setting—employed the "Do Not Broadcast" setting.

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938 F.3d 985 *; 2019 U.S. App. LEXIS 27107 **; 2019 U.S.P.Q.2D (BNA) 336537; 2019 WL 4251889

HIQ LABS, INC., Plaintiff-Appellee, v. LINKEDIN CORPORATION, Defendant-Appellant.

Subsequent History: Rehearing denied by, Rehearing denied by, En banc HiQ Labs, Inc. v. LinkedIn Corp., 2019 U.S. App. LEXIS 36760 (9th Cir. Cal., Nov. 8, 2019)

Petition for certiorari filed at, 03/09/2020

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 3:17-cv-03301-EMC. Edward M. Chen, District Judge, Presiding.

hiQ Labs, Inc. v. LinkedIn Corp., 273 F. Supp. 3d 1099, 2017 U.S. Dist. LEXIS 129088 (N.D. Cal., Aug. 14, 2017)


hiQ, profiles, authorization, users, preliminary injunction, district court, accessing, website, scraping, privacy, skills, injunction, serious question, cease-and-desist, merits, public interest, general public, permission, password, analytics, employees, trespass, parties, servers, networking, blocking, platform, tortious interference, third party, conferences

Civil Procedure, Injunctions, Grounds for Injunctions, Balance of Hardships, Remedies, Preliminary & Temporary Injunctions, Irreparable Harm, Public Interest, Appeals, Standards of Review, Abuse of Discretion, Torts, Contracts, Intentional Interference, Elements, Computer & Internet Law, Criminal Offenses, Computer Fraud & Abuse Act, Governments, Legislation, Interpretation, Business & Corporate Compliance, Communications Law, Federal Acts, Stored Communications Act, Interpretation, Rule of Lenity