KieranMac

I'm a lawyer that works in the web-scraping space, and I always chuckle when I read threads like this. Almost every company that we now consider a monopolist (or their affiliates) in the tech space used scraping a part of their process to build their business, and almost every one of those same monopolists now prohibits startups and competitors from scraping their data (which, invariably, is not actually "their" data in any sort of legally cognizable sense). And so perhaps the ethics of web scraping are not so straightforward. And neither are the legal issues associated with it.

I wrote an article about that last fall that got some attention here.

https://news.ycombinator.com/item?id=37264676

There are probably two dozen specialists on this issue nationwide. A properly targeted Google search will outperform your personal network of attorneys (and their network of attorneys) 99.9% of the time.

Speaking of surgery, here's an analogy that might be helpful.

Five years ago I had a catastrophic ankle injury I suffered while running in Moab. Two broken bones, lots of torn ligaments, and otherwise irreparable damage without serious surgery.

I interviewed a whole bunch of surgeons before I decided where to go under the knife. And I don't remember where I got the advice, but someone told me the most important question to ask is: "How many times have you performed this specific surgery (a Maisonneuve fracture repair)?"

I eventually found the Steadman clinic and a doctor who had already performed the exact surgery I needed nearly 100 times. Everyone else's answer was less than 5. Some even answered 0. The surgical clinic I used had signed pictures of professional athletes all over the wall. I found the true specialist, and I'm very thankful that I did.

Even bad lawyers and surgeons are expensive. When you have a bet-the-business legal issue, do plenty of advanced interviewing to make sure that the one you hire has plenty of experience with the exact issue you need help with. If it's not obvious that you've found the right person, keep looking.

There are certain tasks that you would never do yourself, such as surgery. And there are certain tasks like changing your oil where anyone with patience and diligence can do it themselves. It's just a question of whether you want to spend the time to learn it and do it.

Responding to a C&D letter from a Fortune 50 company, I would posit, is more like performing surgery than changing your oil. The cost of being wrong is rather high.

This is all good advice.

Also, notice is a component of many legal claims.

The best way to perform surgery is to read a few articles online and then get to cutting!

It is certainly true that anyone can respond to a C&D letter. But whether you can do so without doing more harm than good is another question.

It is worth pointing out that FB has a long history of litigating this issue, from Power Ventures, to BrandTotal, to Octoparse, to Voyager Labs and more. And they have about 80-90% track record of success. Obviously, they send C&Ds more often than they file litigation. But to act as if this is a completely idle threat is naive.

I can't share client-specific stories because that's protected by AC privilege. But I think the recipients of these letters sometimes have more potential to negotiate than they realize.

The problem with this advice is that this is a very niche area of law. Unless the people you know have had prior experiences with data-access/web-scraping legal issues, a generalist recommendation is very unlikely to be helpful here.

As an attorney who has experience responding to Meta’s “anti-scraping team,” I think there might be more opportunities for amicable resolutions than you might expect (depending on the specifics of what you’re doing, of course). Meta is not oblivious to the fact that they’re under significant social and regulatory scrutiny. They sometimes play nice if you’re willing to accommodate certain considerations.

Either way, my recommendation would be to find an attorney with industry-specific expertise to address the norms of your industry. C&Ds range from idle shake downs to definite pre-cursors to litigation. Without industry-specific knowledge, it’s hard to know which is which.

No, it is not. If you do not have a fiduciary relationship with Boeing and you have no confidentiality obligations with respect to the information, you are not trading on inside information. If you're in the plane when the door blows up, you're just the first person with material public information. You're not trading on material non-public information.

See, e.g.

https://www.law.cornell.edu/wex/misappropriation_theory_of_i...

Nope.

I agree with the first paragraph and strongly disagree with the second. If you are a US citizen and live in the US, for any pass-through entity, you will likely be taxed and need to register as a foreign entity in your home state. Probably easiest to just incorporate where you reside, unless you're looking to raise capital, in which case you should just go straight to DE.

Conversion costs and/or re-incorporation complexity varies considerably by state. Some states allow for simple statutory conversion; other states expressly prohibit it. It is not accurate to to say that reincorporating is just a bit of work. Sometimes it is, and sometimes it's a lot of work. If you're serious about raising capital, start as a DE C Corp from the gun. Especially if you have multiple founders.

It's just industry standard for capital raises. All corporate attorneys learn DE law when they go to law school and are expected to know it if they practice corporate law. A Colorado attorney doesn't know California law and a California attorney doesn't know New York law, but if they do corporate legal work, they're all expected to know how to deal with DE law.

Nobody knows Nevada or Wyoming law. I don't even think Wyoming attorneys know Wyoming law.

DE's court of chancery is also very sophisticated with respect to corporate legal issues. That makes it the venue of choice for investors, which means it has become the venue of choice for those seeking investment.

But in terms of states and their processes for filings, DE is a total pain in the butt. You have to pay an expedited filing fee just so that they can process your filing in less than a week. Their system is counterintuitive and clunky. You better like elevator music if you ever want to talk to a human. Sometimes they reject filings and just don't bother to tell you. It's all opaque and antiquated.

I'm an attorney.

Delaware is definitely not the cheapest or even in contention for the cheapest.

Still, if you want to raise capital, the correct answer is DE C Corp. If you're not looking for external funding, any state will do. If you care about anonymity, do Nevada or Wyoming. If you don't care about anonymity, Colorado is actually a very good choice. Very simple, intuitive online filing system that accepts filings instantaneously. Filing fees as cheap as anywhere in the country. No need for an attorney (or LegalZoom or some other random service) unless you just don't feel like dealing with it.

Costs will likely be $50 to file, Registered Agent (as cheap as $30 per annum), and $10 periodic report fee annually every year you're in business. Colorado is even nice enough to send plenty of reminders on when to file that report if you give them an email address.

Since you're a US citizen, my instinct would be LLC taxed as an S corp. But confirm with your accountant!

Good luck!

I am not certain who it is. And even if I were, I would not dox someone who wanted to keep their identity private.

Actually, as I re-read this, this how it should go:

-hiQ sues LinkedIn for injunctive relief in the ND Cal., win on its CFAA claim.

-LinkedIn appeals to 9th Circuit, which sides with hiQ on CFAA claim

-hiQ loses its antitrust claims at the motion to dismiss stage

(somewhere in here hiQ goes out of business, but rich benefactor keeps paying its legal bills)

-LinkedIn continues with breach of contract and other claims, wins at motion to dismiss

-LinkedIn appeals to the Supremes, who vacates and remands back to 9th Circuit after Van Buren

-9th Circuit sides with hiQ a 2nd time on the CFAA claim

-injunction is dissolved

-hiQ suffers near-total defeat at summary judgment

-hiQ waves the white flag, agrees to permanent injunction agreeing to nearly all of LinkedIn's demands and pays LinkedIn 500k

These online agreements are often enforceable, even when companies have lots of resources to defend themselves.

Scraping other sites while prohibiting it on your own is "do what I say, not what I do" behavior, which I think is a fair, consensus understanding of what it means to be hypocritical.

I think the difference is that defeating the other team is the point of sports, whereas at least ostensibly the law is supposed to provide a set of coherent rules for businesses to compete against each other. Trademarks are defined according to certain legal rules, and if you have one, this is how they provide you with a limited monopoly in a certain context. Allowing businesses to define property law through contracts lets people define the rules however they want. And that leads to irrational results.

I don't. I just have a .pdf. Email me at Kieran(at)McCarthyLG(dot)com if you want a copy.

Not a mixed judgment in Nov. 22. It was a massive defeat for hiQ Labs. Read the permanent injunction issued by the court.

Lawyers can be random internet weirdos, too.

That's a really good question. The judge's original rulings were very hiQ-favorable, with those opinions becoming progressively less favorable over time. Whether it was facts learned in discovery or push-back from somewhere else, I wish I knew. Something happened along with the way that made the judge more favorable to LinkedIn and less sympathetic to hiQ. I find it hard to reconcile the early TRO proceedings with what came later. And as I say in the articles, the judge never bothered to explain why he made the 180.

That's pretty shady re: the threat to permanently delete the personal accounts. But it's also not surprising. At this point LinkedIn and their fellow social media cohorts are emboldened by these recent decisions and they're on the warpath. People need to be careful out there.

Read the link; there's plenty of detail there. Not going to comment on the specifics of OP's case in a public forum, but if the OP wants a free consult, I'll do that.

A better summary:

Summary judgment was granted on behalf of LinkedIn against hiQ Labs for breach of contract. Summary Judgment was denied against hiQ Labs on its CFAA claims. So the court ruled that hiQ breached LinkedIn's contract.

The parties settled their dispute with hiQ Labs agreeing to court-imposed injunction to never again scrape LinkedIn and by paying LinkedIn $500k.

Despite the headlines, the final resolution of these disputes was a win for LinkedIn, not hiQ.

For the longer version, read the posts above.

Shoot me an email at Kieran(at)McCarthyLG.com.

Again, this is old news and wrong.

https://blog.ericgoldman.org/archives/2022/12/hello-youve-be...

I am an attorney whose primary focus is in this area of law. And this interpretation of the LinkedIn v. hiQ case is categorically wrong.

https://blog.ericgoldman.org/archives/2022/12/as-everyone-ex...

https://blog.ericgoldman.org/archives/2022/12/hello-youve-be...