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A recent decision from the Ninth Circuit Court of Appeals in a dispute between LinkedIn and hiQ Labs has spotlighted the thorny legal issues involved in unauthorized web scraping 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.…
Continue Reading Ninth Circuit’s LinkedIn Decision Does Not Greenlight the Unauthorized Web Scraping of Public Websites

A recent Second Circuit decision makes clear that the safe harbor that social media and other Internet companies enjoy under Section 230 of the Communications Decency Act broadly applies to a wide variety of claims.

When you think about the Section 230 safe harbor, don’t just think defamation or other similar state law claims. Consider whether the claim—be it federal, state, local, or foreign—seeks to hold a party that publishes third-party content on the Internet responsible for publishing the content. If, after stripping it all down, this is the crux of the cause of action, the safe harbor should apply (absent a few statutory exclusions discussed below). The safe harbor should apply even if the party uses its discretion as a publisher in deciding how best to target its audience or to display the information provided by third parties.

In 2016, Facebook was sued by the estates of four U.S. citizens who died in terrorist attacks in Israel and one who narrowly survived but was grievously injured. The plaintiffs claimed that Facebook should be held liable under the federal Anti-Terrorism Act and the Justice Against Sponsors of Terror Act, which provide a private right of action against those who aid and abet acts of international terrorism, conspire in furtherance of acts of terrorism, or provide material support to terrorist groups. The plaintiffs also asserted claims arising under Israeli law.…
Continue Reading CDA Section 230 Immunizes Platform From Liability for Friend and Content Suggestion Algorithms

Section 230 of the Communications Decency Act continues to act as one of the strongest legal protections that social media companies have to avoid being saddled with crippling damage awards based on the misdeeds of their users.

The strong protections afforded by Section 230(c) were recently reaffirmed by Judge Caproni of the Southern District of New York, in Herrick v. Grindr. The case involved a dispute between the social networking platform Grindr and an individual who was maliciously targeted through the platform by his former lover. For the unfamiliar, Grindr is mobile app directed to gay and bisexual men that, using geolocation technology, helps them to connect with other users who are located nearby.

Plaintiff Herrick alleged that his ex-boyfriend set up several fake profiles on Grindr that claimed to be him. Over a thousand users responded to the impersonating profiles. Herrick’s ex‑boyfriend, pretending to be Herrick, would then direct the men to Herrick’s’ work-place and home. The ex-boyfriend, still posing as Herrick, would also tell these would-be suitors that Herrick had certain rape fantasies, that he would initially resist their overtures, and that they should attempt to overcome Herrick’s initial refusals. The impersonating profiles were reported to Grindr (the app’s operator), but Herrick claimed that Grindr did not respond, other than to send an automated message.…
Continue Reading Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act

In U.S. copyright law circles, one of the hottest topics of debate is the degree to which the fair use doctrine—which allows for certain unauthorized uses of copyrighted works—should protect companies building commercial products and services based on content created by others, especially where such products or services are making transformative uses of such content.

This debate is likely to become even more heated in the wake of the Second Circuit Court of Appeals’ issuance last week of its long-awaited decision in the copyright dispute between Fox News and TVEyes, in which the court sided with the copyright owner over the creator of a digital “search engine” for identifying and viewing television content. But regardless of which side of the debate you are on (or if you are just standing on the sidelines), the court’s decision provides important guidance on the scope of the fair use doctrine as applied to commercial products and services.

The Dispute

Using the closed-captioning data that accompanies most television programming, TVEyes provides a searchable database of video clips. TVEyes’ subscribers—who pay $500 a month—can search the database for keywords in order to identify and view video clips from the service; such video clips may be as long as ten minutes in duration.

In July 2013, Fox sued TVEyes for copyright infringement and, in August 2015, Judge Hellerstein of the U.S. District Court for the Southern District of New York held that the key features of the TVEyes service are protected under the fair use doctrine.…
Continue Reading All Eyes on Fair Use: The Second Circuit Delivers a Victory for Copyright Owners

Following a recent decision from the Sixth Circuit, anonymous bloggers and other Internet users who post third-party copyrighted material without authorization have cause for concern. They may be unable to preserve their anonymity.

In Signature Management Team, LLC v. John Doe, the majority of a panel of the U.S. Court of Appeals for the Sixth Circuit established a new “presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff” in a copyright infringement case. This unmasking presumption is intended to protect the openness of judicial proceedings. Whether to unmask the defendant in such circumstances requires an examination of factors such as the plaintiff’s and public’s interest in knowing the defendant’s identity.…
Continue Reading Anonymous Internet Users Beware: New Presumption in Favor of Unmasking the Losing Anonymous Defendant

Following a recent U.S. district court’s ruling, foreign companies operating cloud-based services may find themselves subject to federal long-arm jurisdiction under the Federal Rules of Civil Procedure 4(k)(2), even if they have no physical presence in the United States. In reaching its decision, the court noted that the question was ripe for consideration by the court of appeals; thus, it remains to be seen whether the decision will stand if appealed.

In Plixer International, Inc. v. Scrutinizer GMHB, the District Court of Maine ruled that, while jurisdiction would not exist under Maine’s long-arm statute, the court had specific personal jurisdiction over a German company under federal long-arm statute. Rule 4(k)(2), the federal long-arm statute, provides that serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction as long as exercising jurisdiction is consistent with the U.S. Constitution and laws.

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Continue Reading Foreign Cloud-Based Service Providers May Be Subject to Personal Jurisdiction in the United States

2015 11 30 DJV NAT 218Facebook’s four-year battle on behalf of its users, seeking to quash 381 warrants obtained by the New York County District Attorney’s Office, has come to a close. The decision of the New York Court of Appeals—which is New York’s highest court—leaves Facebook users exposed to wide-ranging and largely unchecked inquiries by New York criminal prosecutors…

GettyImages-whitebackground_514259478-[Converted]Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago seeking to balance the needs of two factions: Content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of their customers.

For the Internet companies, Congress offered relief by creating a number of “safe harbors” shielding such companies from copyright-related damages arising from their customers’ infringing activities.

In particular, the DMCA established four distinct safe harbors for online service providers, each safe harbor aimed at a different type of online activity (i.e., transitory digital network communications; system caching; online hosting; and provision of information location tools) and each with its own set of eligibility requirements.

To qualify for any of these DMCA safe harbors, however, the DMCA requires that service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.”

Despite the threshold importance of repeat infringer policies, the DMCA left many questions unanswered. Who exactly counts as an “infringer”? Does it include every user accused of infringement or only those found culpable in court? If it’s somewhere in between, what level of proof is required before a service provider is required to take action? Can the repeat infringer policy differentiate between those who upload infringing content for others to copy and share and those who only download such content for their own personal viewing? And how many acts of infringement does it take to become a “repeat infringer” anyway?…
Continue Reading Second Circuit Clarifies “Repeat Infringer” Policy Requirement for DMCA Copyright Safe Harbors

Because content posted online can be accessed nearly anywhere, courts regularly face the issue of whether they have personal jurisdiction over a defendant who posted material to the web or a social media site. Recently, one New York federal court held that the mere fact, standing alone, that copyrighted material posted online was accessible…