hiQ Labs, Inc. v. Linkedin Corporation
COMPLAINT against Linkedin Corporation ( Filing fee $ 400, receipt number 0971-11453893.). Filed byhiQ Labs, Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Civil Cover Sheet)(Wisoff, Carl) (Filed on 6/7/2017)
May 31, 2017
Via E-Mail to email@example.com
Senior Litigation Counsel
1000 W. Maude Avenue
Sunnyvale, CA 94085
Cease and Desist Letter to hiQ Labs, Inc.
We are writing on behalf of hiQ Labs, Inc. in response to your letter dated May 23, 2017
and further to our teleconference of May 30, 2017. As LinkedIn’s cease and desist request poses
an existential threat to hiQ in its current form, your letter combined with your uncompromising
posture on our phone call puts the company in a very difficult position. We reiterate our request,
made on the May 30 call, that you immediately restore hiQ’s access to public LinkedIn data and
arrange a face-to-face meeting of business principals. This will allow hiQ to continue functioning
as a business and give the parties the time they need to engage in discussions so that LinkedIn
can better understand hiQ’s business and hiQ can better understand LinkedIn’s concerns. Absent
that, you leave hiQ with few options.
Your letter mentions concerns about “data security” and “member trust.” We want to
make sure there is no misunderstanding on LinkedIn’s part as to what hiQ does. hiQ collects
public profile data from LinkedIn’s users and analyzes these profiles to help employers
understand (a) which of their employees are at the greatest risk of being recruited away
(“Keeper”), and (b) the range of skills possessed by their workforce (“Skill Mapper”). These
services are very much in line with the core focus of LinkedIn, which is to create economic
opportunities for professionals in their careers.
hiQ in no way accesses LinkedIn member private data or any area of LinkedIn’s website
requiring a password; it merely accesses data which LinkedIn’s members have expressly made
public. LinkedIn publicly acknowledges that this data belongs to members, not to LinkedIn, and
LinkedIn in fact promotes itself as a networking platform where this information will be publicly
shared precisely to encourage members to join LinkedIn. We are thus straining to understand
how these activities in any way present a security or trust issue for LinkedIn. Quite the opposite;
the existence of hiQ enhances the value of having a LinkedIn public profile, which in the long
run enriches LinkedIn.
May 31, 2017
As we discussed on our phone call, LinkedIn has for several years been aware of hiQ’s
synergistic activities and has participated in hiQ’s Elevate conference on data analytics issues.
LinkedIn has spoken at hiQ’s events and employee Lorenzo Canlas even accepted hiQ’s “Impact
Award.” hiQ has always operated in LinkedIn’s plain view and with its support, so we are at a
loss to understand the sudden (and potentially devastating) change of direction represented by
your letter. hiQ is presently in the midst of a financing round, which is now endangered because
of your letter.
When, on our phone call, we asked whether hiQ’s activities caused any injury to
LinkedIn, you stated you did not know. When asked whether hiQ’s business was in fact
synergistic to LinkedIn, you stated you did not know. Notably, your letter does not suggest that
data collection by hiQ is impairing or interfering with LinkedIn servers, and in our phone call
you were unable to identify any such impairment or interference.
The only reason that you stated lies behind LinkedIn’s decision to revoke hiQ’s access is
an alleged violation of the User Agreement. But those terms are not enforceable against persons
or entities that merely visit the website to view or use public information. Moreover, the User
Agreement is so overbroad as to be, in our view, meaningless:
The User Agreement states it is forbidden to “[s]crape or copy profiles” through
“crawlers,” “automated software,” and “script robots.” Yet Google and Bing access
LinkedIn using scrapers and robots. And LinkedIn itself provides an automated feature
to create a local PDF copy of profiles, which it then instructs that users may print
(thereby creating a second “copy”).
Thus, far from blocking the putatively prohibited actions, LinkedIn invites them.
The User Agreement prohibits “copying profiles” through “manual work,” yet every time
people visit LinkedIn using a web browser they are engaging in “manual work” that
creates a “copy” of a profile on their screen, a “copy” in their computer’s memory and a
“copy” on their hard drive. The ordinary operation of LinkedIn demands a breach of this
The User Agreement prohibits anyone from “us[ing], the content or data of others
available on the Services (except as expressly authorized).” This means any time
someone views a member profile and “uses” some information – e.g. sends an email to
the address on their LinkedIn profile – he or she must first request “express permission”
before sending the email. This, no one does.
Similarly, the User Agreement forbids a member to “[s]hare or disclose information of
others without their express consent.” Yet LinkedIn itself provides a “Share Profile”
feature. <> It also provides a
convenient “share” button for users to share the posts of others. Unsurprisingly, these
features do not first require “express permission” before sharing.
May 31, 2017
We understand LinkedIn’s position to be that anytime someone engages in any of the above acts,
he or she is in violation of the law. Yet as shown above, these provisions are so selfcontradictory that no LinkedIn user could reasonably be expected to comply with them.
Candidly, we have some concern that LinkedIn’s sudden focus on hiQ may be for an anticompetitive purpose. A page on the LinkedIn website states that it is investing now in its own
internal data science projects. See <> Is it LinkedIn’s
position that it alone can perform data analysis on LinkedIn public profile pages?
The cases you cite arose under very different circumstances and did not involve potential
anticompetitive motivations or conduct.
While we would like to reach an amicable resolution, we do not believe that hiQ has done
anything unlawful. To the contrary, we believe that LinkedIn’s activity would be enjoined in a
court of law and LinkedIn would face monetary exposure under, at minimum, the following list
Common law promissory estoppel – LinkedIn is estopped from revoking hiQ’s access to
public profile pages because LinkedIn was aware that hiQ was relying on these expressly
public pages for several years, and never threatened to revoke access; rather it
participated and encouraged hiQ. hiQ’s reliance was justifiable and it is thus entitled to
continue using LinkedIn’s avowed public pages in its business.
Common law intentional interference with contract and prospective advantage – LinkedIn
induced members into joining by offering them the ability to create putatively “public
profiles” and is now wrongfully making those profiles “non-public,” at least as to hiQ.
hiQ has millions of dollars’ worth of business that now hangs in the balance because of
LinkedIn’s wrongful bait and switch.1
California unfair competition and antitrust law – LinkedIn may not use its market power
as the world’s largest professional network to squelch competition in the neighboring
field of data analytics.
California Free Speech/First Amendment – Social networks are the new “town square.”
Much like the shopping mall in Robins v. Pruneyard Shopping Center, 592 P. 2d 341
(Cal. 1979) and Fashion Valley Mall, LLC v. NLRB, 172 P. 3d 742 (Cal. 2007), LinkedIn
opened itself up to the “public,” so it may not now selectively exclude those members of
the public whom it dislikes. Furthermore, it is apparent that LinkedIn is using the CFAA
as an end run around the Copyright Act: you stated many times on our call that the
alleged wrong by hiQ was “copying” webpages en masse. However, “copyright law
hiQ’s current customers include eBay, Capital One, and GoDaddy. Prospective
customers include Bank of New York Mellon, Chevron, Groupon, Honeywell, IBM, Visier and
May 31, 2017
contains built-in First Amendment accommodations.” Eldred v. Ashcroft, 537 U.S. 186
(2003). These include the requirement of ownership, the defense of license, the ideaexpression dichotomy, and the fair use doctrine. These limits on copyright law would
immunize hiQ here, but by cloaking its allegations of improper “copying” in the garb of
the CFAA, LinkedIn is attempting to circumvent the First Amendment protections of
This is a non-exclusive listing of the protections to which hiQ is entitled. We are
prepared to protect hiQ’s legal rights in court if necessary; LinkedIn’s tactics pose a grave threat
to hiQ’s continued existence. But we would prefer to amicably resolve this matter as you have
proposed. We ask that you promptly agree to stop denying hiQ access to LinkedIn’s public
pages, withdraw your cease and desist demand, and engage in meaningful discussions to try to
resolve the matter. In the meantime, we ask LinkedIn to preserve all records, data and
documents, however stored, that mention, refer or relate to hiQ or to any desire, plan or effort to
enter the data analytics business.
Very truly yours,
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