| > 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. |
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.