| > 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. |
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.