Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

LinkedIN

Section 23o, the “<a href="https://www.jeffkosseff.com/home" target="_blank">26 words that changed the Internet</a>,” is once again under scrutiny from lawmakers.At the federal level, Republicans and Democrats on the Senate Judiciary panel’s subcommittee on privacy, technology, and the law found common ground in their calls to reform the <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">27-year-old law</a>. Specifically, <a href="https://www.cnn.com/2023/03/08/tech/senators-section-230-reform/index.html" target="_blank">in a hearing earlier this month</a>, Connecticut Democrat Sen. Richard Blumenthal and Missouri Republican Sen. Josh Hawley joined forces to <a href="https://www.bloomberglaw.com/bloomberglawnews/exp/eyJjdHh0IjoiVEVOVyIsImlkIjoiMDAwMDAxODYtYzI5OS1kYzI3LWFkYmUtZmVkOWZjZjUwMDAxIiwic2lnIjoiUU93MEMvbFdXNjY0ZE81UktqRUw5Sm9VT1cwPSIsInRpbWUiOiIxNjc4MzYzMDQwIiwidXVpZCI6InJwTVBNNC91MUFyV2xnYTA5QWQ3RGc9PVE4R0JPamtJV1NNWmMrR1FCMHpTamc9PSIsInYiOiIxIn0=?bwid=00000186-c299-dc27-adbe-fed9fcf50001&cti=LFVL&emc=btenw_nl%3A15&et=NEWSLETTER&isAlert=false&item=read-text&qid=7431073&region=digest&source=newsletter&uc=1320000033&udvType=Alert&usertype=External" target="_blank">re-examine the immunity that Section 230’s provides</a> to digital platforms and publishers with respect to recommending harmful content to children. This follows the introduction, in 2022, by Senator Blumenthal and Marsha Blackburn, a Republican Senator from Tennessee, of the <a href="https://www.congress.gov/bill/117th-congress/senate-bill/3663/text" target="_blank">Kids Online Safety Act</a>, which aimed to shield children from online content that covered eating disorders, suicide, and sexual exploitation.At the state level, <a href="https://www.npr.org/2023/03/24/1165764450/utahs-new-social-media-law-means-children-will-need-approval-from-parents" target="_blank">Utah’s Governor Spencer Cox just signed two bills into law</a> that prohibit minors from creating an account on any digital property (whether a website, social media platform, or other electronic forum) unless they have express consent from a parent or legal guardian and provide official documentation identifying the child and the parent. The new laws, <a href="https://le.utah.gov/~2023/bills/static/SB0152.html" target="_blank">S.B. 152 Social Media Regulation Amendments</a>, would require any website or other platform with more than 10 million account holders from allowing a minor to register for and post content without such consent. In addition, these new laws also prohibit children under 18 from using social media platforms between 10:30 p.m. and 6:30 a.m.(Previously, <a href="https://libertas.org/bill/sb-152-restrictions-on-social-media-use-by-minors/" target="_blank">S.B. 152 passed the Utah House of Representatives 60–11 and the Utah Senate 23–4</a>.)Opponents to the bill, most notably the <a href="https://www.eff.org/" target="_blank">Electronic Frontier Foundation</a> (EFF), argue that requiring age verification would <a href="https://www.eff.org/deeplinks/2023/03/age-verification-mandates-would-undermine-anonymity-online" target="_blank">undermine online anonymity</a> not only for the minors the proposed law seeks to protect, but for all online users.These developments arise in the wake of the Supreme Court’s hearing in February in <a href="https://www.sociallyawareblog.com/topics/supreme-court-to-address-section-230-for-first-time" target="_blank">Gonzalez v. Google</a>, a case involving the question whether Section 230 immunizes online service providers when they use algorithms to recommend content to users, specifically terrorism-related videos posted on YouTube by other users of the video-sharing service.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

oneill_julie_blog_150x150.png

oneill_julie_common_640x280.jpg

oneill_julie_heroretina_2700x1160.jpg

oneill_julie_mobileretina_750x1040.jpg

oneill_julie_social_600x600.jpg

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Social Links: Section 230 Under Scrutiny (Again) From Lawmakers

Section 23o, the “26 words that changed the Internet,” is once again under scrutiny from lawmakers.
At the federal level, Republicans and Democrats on the Senate Judiciary panel’s subcommittee on privacy, technology, and the law found common ground in their calls to reform the 27-year-old law.

Social Links: Section 230 Under Scrutiny (Again) From Lawmakers

In a purported attempt to safeguard free speech, President Trump has issued an order “Preventing Online Censorship,” that would eliminate the protections afforded by <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener noreferrer">one of our favorite topics</a> here at Socially Aware, <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230</a> of the Communications Decency Act, which generally protects online platforms from liability for content posted by third parties. President Trump issued the order after <a href="https://www.businessinsider.com/trump-online-censorship-executive-order-free-speech-first-amendment-2020-5" target="_blank" rel="noopener noreferrer">Twitter tagged some of his tweets as misleading</a> and linked the tweets to text contradicting their substance. Democratic presidential candidate Joseph Biden is also in favor of abolishing the law, but for very different reasons. <a href="https://www.law.com/njlawjournal/2020/06/14/trumps-social-media-order-puts-a-target-on-communications-decency-act/" target="_blank" rel="noopener noreferrer">Find out what they are</a>.There’s more than one way to strip a law of its teeth. In what Politico describes as “the latest GOP-led plan to target Section 230” of the Communications Decency Act, Senator Josh Hawley is proposing legislation that would make websites eligible for the Section 230 protections only if they stop the sale of ads that target users based on behavioral data.And a Circuit Court in Virginia dismissed a suit that Representative Devin Nunes, a California Republican, brought against Twitter for defamation stemming from two parody accounts—@DevinNunesMom, and <a href="https://twitter.com/devincow">@DevinCow</a>—that posted unflattering things about Rep. Nunes during President Trump’s impeachment hearings last year. The court held that <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230</a> of the Communications Decency Act insulated Twitter from liability.After the first Supreme Court oral argument held over the phone, Justice Ruth Bader Ginsburg wrote in a majority opinion that Booking.com is entitled to a trademark, and that “<a href="https://www.cnn.com/2020/06/30/politics/booking-trademark-supreme-court/index.html" target="_blank" rel="noopener noreferrer">adding ‘.com’ to a generic word can make the entire combination eligible for trademark protection</a>.”Twitter’s new “request verification” option will allow run-of-the-mill users to acquire the blue checkmark next to their names that the platform formerly reserved for public figures. Read about how else <a href="https://techcrunch.com/2020/06/08/twitter-to-launch-a-revamped-verification-system-with-publicly-documented-guidelines/" target="_blank" rel="noopener noreferrer">Twitter plans to improve its verification system</a>.Tik My Day, <a href="https://mumbrella.com.au/tik-tok-marketing-agency-tik-my-day-launches-632334" target="_blank" rel="noopener noreferrer">a marketing agency that Tik Tok launched in Australia</a>, says it can provide all the services necessary for a branded Tik Tok campaign within 24 hours.Users of the dating app OkCupid can now add a <a href="https://theblog.okcupid.com/black-lives-matter-2d40ac10d1c0" target="_blank" rel="noopener noreferrer">#BlackLivesMatter</a> badge to their profiles. The social media firm also donated $1 million in advertising to Black American civil rights organizations, and added several social-justice-related questions to their matching process. How did the app’s users answer? <a href="https://www.forbes.com/sites/johnscottlewinski/2020/06/13/social-media-dating-app-okcupid-launches-blacklivesmatter-badge/#1689f9042e6a" target="_blank" rel="noopener noreferrer">Read the statistics</a>.

Debate over §230 of the CDA rages on; Twitter defeats defamation suit; Booking.com held valid trademark

In a purported attempt to safeguard free speech, President Trump has issued an order “Preventing Online Censorship,” that would eliminate the protections afford

Debate over §230 of the CDA rages on; Twitter defeats defamation suit; Booking.com held valid trademark

A recent <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/17-16783/17-16783-2019-09-09.html" target="_blank" rel="noopener">decision from the Ninth Circuit Court of Appeals</a> in a dispute between LinkedIn and hiQ Labs has spotlighted the thorny legal issues involved in <a href="https://www.sociallyawareblog.com/2017/08/21/social-links-federal-court-issues-seminal-opinion-on-web-scraping-obama-breaks-twitter-record-tn-court-holds-states-subpoena-law-applies-to-digital-communications/" target="_blank" rel="noopener">unauthorized web scraping</a> of data from public websites. While some may interpret the LinkedIn decision as greenlighting such activity, this would be a mistake. On close review of the decision, and in light of other decisions that have held unauthorized web scrapers liable, the conduct remains vulnerable to legal challenge.hiQ and LinkedIn Founded in 2012, hiQ is a data analytics company that uses automated bots to scrape information from LinkedIn’s website. hiQ targets the information that users have made public for all to see in their LinkedIn profile. hiQ pays nothing to LinkedIn for the data, which it uses, along with its own predictive algorithm, to yield “people analytics,” which it then sells to clients.In May 2017, LinkedIn sent a cease-and-desist letter to hiQ demanding that it stop accessing and copying data from LinkedIn’s servers. LinkedIn also implemented technical measures to prevent hiQ from accessing the site, which hiQ circumvented.Shortly thereafter, with its entire business model under threat, hiQ filed suit in the United States District Court for the Northern District of California seeking injunctive relief and a declaration that LinkedIn had no right to prevent it from accessing public LinkedIn member profiles.Without access to LinkedIn public profile data, hiQ argued that it would likely be forced to breach its existing contracts with clients and to pass up pending deals with prospective clients. hiQ further noted that it was in the middle of a financing round when it received LinkedIn’s cease-and-desist letter and that in light of the uncertainty about the company’s future viability, that financing round stalled. hiQ claimed that if LinkedIn prevailed, it would have to lay off most, if not all, of its employees and shutter its operations.In August 2017, <a href="https://h2o.law.harvard.edu/collages/44940" target="_blank" rel="noopener">the district court granted hiQ’s motion for a preliminary injunction</a>. It ordered LinkedIn to withdraw its cease-and-desist letter, to remove any existing technical barriers to hiQ’s access to public profiles, and to refrain from putting in place any legal or technical measures with the effect of blocking hiQ’s access to public profiles.LinkedIn appealed the district court’s order. More than two years passed.The LinkedIn DecisionOn September 9, 2019, the <a href="https://www.law.com/therecorder/2019/09/09/ninth-circuit-upholds-data-miners-injunction-against-linkedin/?slreturn=20190817103036" target="_blank" rel="noopener">Ninth Circuit affirmed the district court’s preliminary injunction</a> forbidding LinkedIn from denying hiQ access to publicly available LinkedIn member profiles.The Ninth Circuit concluded that the district court did not abuse its discretion in finding that hiQ established a likelihood of irreparable harm because the survival of its business was threatened. The court further held that the district court did not abuse its discretion in balancing the equities and concluding that, even if some LinkedIn users retain some privacy interests in their information notwithstanding their decision to make their profiles public, those interests did not outweigh hiQ’s interest in continuing its business.While not ruling in favor of hiQ on the merits, the court held that the district court did not abuse its discretion in finding that hiQ raised serious questions going to (1) the merits of its claim for tortious interference with contract, alleging that LinkedIn intentionally interfered with its contracts with third parties, and (2) the merits of LinkedIn’s legitimate business purpose defense. hiQ also raised a serious question as to whether its state law causes of action for tortious interference and unfair competition were preempted, as LinkedIn alleged as its principal defense, by the <a href="https://www.nacdl.org/Landing/ComputerFraudandAbuseAct" target="_blank" rel="noopener">Computer Fraud and Abuse Act</a> (CFAA). The CFAA prohibits intentionally accessing a computer without authorization, or exceeding authorized access, and thereby obtaining information from any protected computer. In particular, the court concluded that hiQ had raised a serious question as to whether the CFAA’s reference to access “without authorization” limits the scope of statutory coverage to computer information for which authorization or access permission, such as password authentication, is generally required.In short, the court held that the district court did not abuse its discretion in finding that hiQ had made a sufficient showing under the preliminary injunction standard to obtain an order allowing it to continue to operate its business until the merits of the case were decided.Notably, the court recognized that at the preliminary injunction stage, it was not resolving the companies’ legal dispute definitively, nor was it addressing all the claims and defenses they had pleaded in the district court. The court noted that it was considering only the claims and defenses that the parties pressed on appeal and for which the companies had invoked additional claims and defenses in the district court. The Ninth Circuit expressed no opinion as to whether any of those other claims or defenses might ultimately prove meritorious.In particular, the Ninth Circuit recognized that while LinkedIn asserted that it has “claims under the Digital Millennium Copyright Act and under trespass and misappropriation doctrines,” it chose for purposes of the appeal to focus on <a href="https://www.sociallyawareblog.com/2014/07/21/data-for-the-taking-using-the-cfaa-to-combat-web-scraping/#more-3387" target="_blank" rel="noopener">the CFAA defense</a>, such that this was the sole defense to hiQ’s claims that the Ninth Circuit addressed.Practical ImplicationsProhibitions on webscraping can take many forms, and liability for unauthorized web scraping can be imposed under numerous legal theories. That one of those legal theories failed at the preliminary injunction stage in LinkedIn’s case does not mean it will fail in most cases.While the Ninth Circuit took a narrow view of the scope of the CFAA, not all courts would agree with that view. Even with publicly available data, like that on LinkedIn’s site, some courts have held that accessing a site after being expressly informed that further access is unauthorized can violate the CFAA.Moreover, the Ninth Circuit was careful to note that victims of webscraping are not without resort, even if the CFAA does not apply. The court recognized that claims for trespass to chattels, copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract, breach of privacy may also lie.Thus, the decision should not be interpreted as greenlighting unauthorized web scraping. Even in the LinkedIn case itself, it is not clear which party will ultimately prevail.Importantly, the decision emphasizes the need to act promptly against unauthorized web scraping. The court clearly gave weight to the allegation that LinkedIn was well aware of hiQ’s practices for years before sending the cease-and-desist letter. The court further expressed concern that LinkedIn sent the cease-and-desist letter because it planned to create a new product that competed with hiQ’s services, which the court held could raise concerns under California’s unfair competition laws. To avoid such claims, unauthorized web scrapers should be addressed promptly before they free ride for years and build a business off your data.

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

Asante Techs. Inc. v. PMC–Sierra, Inc.

Biovail Corp. v. S.A.C. Capital Mgmt. 2009 WL 2844404 

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

lawrence_j_blog_150x150.png

lawrence_j_common_640x280.jpg

J. Alexander Lawrence

Ninth Circuit’s LinkedIn Decision Does Not Greenlight the Unauthorized Web Scraping of Public Websites