[shakna]

For a public license to be valid, you need to be able to view the terms, to agree to them.

But the EULA says that simply by accessing the site, you agree to its terms.

To view the EULA, you must view the site.

That's just one of many problems wrong with assuming the EULA is binding.

The ruling in this case, has said it isn't, instead because some people can index and scrape (search engines), but others (startups for example) can't. Which is an anti-trust issue.

[dahart]

> The ruling in this case, has said it isn't

No it didn't. This injunction has temporarily prevented LinkedIn from blocking HiQ, and only HiQ, while the case is argued. The court might rule that LinkedIn can't block anyone, or they might rule that HiQ is not entitled to scrape LinkedIn's data.

> Which is an anti-trust issue.

HiQ claimed it's anti-trust using inflammatory language in their PR statement. I disagree with that assessment. LinkedIn is not preventing HiQ from collecting their own copy of the data, in any way, shape or form. HiQ is claiming they should be able to take LinkedIn's copy because the data is "public" data. Even if that's true, HiQ always has the option to get the data from the same source that LinkedIn did.

> To view the EULA, you must view the site. That's just one of the many problems wrong with assuming the EULA is binding.

Absolutely right, EULAs have all kinds of issues. In practice, the issue of having to access the site to view the license isn't a problem. You can choose after reading the EULA to not agree, and you can choose to not access any other data on LinkedIn.

But there is no reason to assume the EULA is not binding because there are no other legal documents that cover your interaction with LinkedIn, aside from any state and federal laws that might override parts of the EULA.

This is mostly irrelevant to the point I was making though, it doesn't matter if the EULA is binding. It's purpose there is to establish that LinkedIn is not providing a public service. It's communicating that there is no expectation of responsibility on the part of LinkedIn, and that doesn't really depend on whether you are specifically bound by the EULA.

It's just like a sign in a store window that says "we reserve the right to refuse service to anyone, at any time, for any reason." You can could say that the sign is not a binding contract, and go into the store naked and yelling and start breaking stuff. When they kick you out, nobody will come to the defense of your right to walk into a store that everyone else is allowed to walk into.

[shakna]

>> The ruling in this case, has said it isn't

> No it didn't.

True. I should have said, "the ruling in this case, has said it isn't clear if the agreement should be binding".

> HiQ is claiming they should be able to take LinkedIn's copy because the data is "public" data.

Nobody is taking anybody's data. LinkedIn are providing copies of the data to anybody who views the page. You can't take something from somebody else in this context. It is not possible. Copying, and ineffective deleting are the only methods available for transfer.

> In practice, the issue of having to access the site to view the license isn't a problem. You can choose after reading the EULA to not agree, and you can choose to not access any other data on LinkedIn.

It is absolutely a problem. You don't view data. You download a copy.

You are not presented with the agreement upon visiting a public page, you first download the public page, which then links to the agreement.

Thus, when the agreement becomes enforced, you already have in your possession data from before you agreed, which is then governed by rules you were not aware of, and may not become aware of as the agreement doesn't require intervention.

If we have to come up with physical analogies for a problem that is inherently digital:

You walk into a store. The store hands you a CD, that they made just for you, saying its yours.

You then say thankyou, and only then does the store say that there are conditions attached. But you can't give the CD back. You can only agree that you will destroy it at an indeterminate time in the future. And your method of destruction is almost guaranteed to be reversible, but its all you have.

Oh, and you might not have chosen to even walk into the store. You were stumbling around other stores, and a door led you here.

In common law, once possession is established, new conditions on the possessed item are next to impossible to apply, unless the method of possession was itself a crime.

---

> But there is no reason to assume the EULA is not binding because there are no other legal documents that cover your interaction with LinkedIn, aside from any state and federal laws that might override parts of the EULA.

A EULA, as its name suggests, is a license agreement. So far as I'm aware, most nations capable of accessing LinkedIn have a definition of a license agreement. Insofar as I'm aware, they all require a license agreement to at least be:

"A valid agreement between two parties, where both parties have read, understood and accepted responsibilities (or had ample opportunity to do so), pertaining to the use of the licensed item."

Prior knowledge is a requirement. You can't agree to something you haven't had the opportunity to comprehend.

But LinkedIn happily gives you a copy of their data before you are able to access the agreement. (Such as if your first visit was to a public profile page).

There are many laws that may invalidate the EULA.

---

> It's purpose there is to establish that LinkedIn is not providing a public service.

Its purpose is irrelevant if it is not binding.

A store can put a sign up, saying that only customers who buy a product before leaving may enter. But if someone does, the store cannot force the individual to make a purchase, because their policy was in conflict with other systems of rights.

If something is non-binding, and therefore invalid, it cannot be applied as... It has no validity.

If you have a driver's license, but it became invalid for some reason, you would not be permitted to continue driving, until such time as it became valid.

If the ownership of your house became questionable, you would be squatting.

The non-binding status of any agreement that becomes invalid, regardless of intention, is a problem in law, but it isn't a solved one.

If a license is invalid, you are not bound by it.

---

Caveat: I'm no longer a registered lawyer, as of two years ago. I may not be up-to-date on some things, and my main knowledge was in cross-border and Australian crime, specifically in the realm of IT.

[dahart]

> I should have said, "the ruling in this case, has said it isn't clear if the agreement should be binding".

The injunction didn't say that either. The only thing it said is that LinkedIn can't block HiQ for the time being. This is common in lawsuits that both parties be prevented from action until a decision is actually made. The decision has not been made yet.

> Nobody is taking anybody's data.

I think I used a poor verb, or you misunderstood me. I meant that HiQ wants to copy LinkedIn's data for their own business. In some sense that can be viewed as theft, and that is the way LinkedIn sees it. Under that view, the verb "take" is appropriate, but it doesn't mean that the original copy is transferred or destroyed, it just means that HiQ is now in possession of a copy.

> There are many laws that may invalidate the EULA.

True, and I don't claim otherwise. "No court has ruled on the validity of EULAs generally". https://en.wikipedia.org/wiki/End-user_license_agreement#Enf...

> Its purpose is irrelevant if it is not binding.

It's (a EULA's) main purpose is for communicating expectations, which I'm arguing is relevant even if it's not binding. If the EULA says "we can refuse service to you", and then service is refused, then it's not a surprise.

In a legal sense, this could (but is in no way guaranteed to) reduce liability. What I'm suggesting is that even if the contract is not binding or valid, if you break the rules and get banned from a site, the EULA may still provide a defense in court from the site being sued by the person to whom service was refused. The site can say "we posted the rules, this person broke the rules" and the person may not have any legal support in favor of getting the service after they broke the site's arbitrary rules.

[shakna]

> It's (a EULA's) main purpose is for communicating expectations, which I'm arguing is relevant even if it's not binding. If the EULA says "we can refuse service to you", and then service is refused, then it's not a surprise.

Also not a surprise when a judge orders you to restore access because your agreement is invalid.

> The site can say "we posted the rules, this person broke the rules" and the person may not have any legal support in favor of getting the service after they broke the site's arbitrary rules.

Absolutely. Sites are largely free to enforce rules arbitrarily, by modifying their HTTP responses.

However, you are not free to exclude individuals whilst including their competitors.

Google has been under the hammer for that recently, though that is the EUs anti-trust laws. [0][1][2]. Of particular interest to this case, you might find this quote telling:

> we believe that Google's behaviour denies consumers a wider choice of mobile apps and services and stands in the way of innovation by other players, in breach of EU antitrust rules.

LinkedIn are accused of standing in the way of innovation by other players, in this case, hiQ, whilst simultaneously allowing other players to innovate, such as Google. One can copy the data, the other can't.

> It's (a EULA's) main purpose is for communicating expectations, which I'm arguing is relevant even if it's not binding.

I can expect the rain to move upwards, but that's irrelevant to how gravity actually acts. Unrealistic or false expectations are not taken into account with the rule of law.

A police officer might let you off with a warning for speeding, if you hadn't noticed the speed change. However, if it went to court, your false expectation of a different speed is not a mitigating factor.

If LinkedIn was wrong to prevent access in this case, their liability will not be reduced, if precedent is followed. They will still be responsible for the actions they took, in full, as Intel [3], Microsoft [4], Google and Apple [5] before them have been.

If however, LinkedIn are seen by the court as acting correctly, hiQ may be asked to pay legal costs, or counter-sued for damages.

If the EULA is non-binding, then it may as well not exist, because it has no legal relevancy.

[0] http://europa.eu/rapid/press-release_IP-17-1784_en.htm

[1] http://europa.eu/rapid/press-release_IP-16-2532_en.htm

[2] http://europa.eu/rapid/press-release_IP-16-1492_en.htm

[3] https://en.wikipedia.org/wiki/Advanced_Micro_Devices,_Inc._v....

[4] https://en.wikipedia.org/wiki/United_States_v._Microsoft_Cor....

[5] https://en.wikipedia.org/wiki/United_States_v._Apple_Inc.

[dahart]

> Also not a surprise when a judge orders you to restore access because your agreement is invalid.

That's not what happened here, there has been no ruling on any agreement, and the injunction order that was given only applies to HiQ, only temporarily, and nobody else. It is not a statement on the validity of EULAs or of LinkedIn's EULA, and it is not a statement on whether LinkedIn is being anti-competetive. It is an injunction and nothing else.

[shakna]

> That's not what happened here, there has been no ruling on any agreement, and the injunction order that was given only applies to HiQ, only temporarily, and nobody else.

I didn't say it was.

> It is not a statement on the validity of EULAs or of LinkedIn's EULA, and it is not a statement on whether LinkedIn is being anti-competetive. It is an injunction and nothing else.

An injunction is not given without merit. It has meaning.

Injunctions are regularly denied when the arguments are clearly in one direction or another.

The injunction strongly suggests that the judge finds hiQ's argument, that LinkedIn's public pages are not bound by the EULA, to "not be without merit".

No precedent has been set, but the conversation is definitively in the opening stages.