Building a wall is akin to limiting the site only to registered users. They don't do this because they want google to index them, but it indexes only publicly available sites.
I.e. that's ok to build a wall, but it's not ok not to build the wall but sue some people among the ones who take a look at the house.
Sure, you can do things that don't constitute trespass. But unlike what's inside a store front, you can't observe the contents of a web server without interacting with it (trespassing).
> unlike what's inside a store front, you can't observe the contents of a web server without interacting with it (trespassing).
Then what do you consider the storefront, or public facing data of a website? Just the whois info on the domain?
The general public can't observe the locked contents of a server without hacking it. Hacking is trespassing.
I would modify your analogy to say the store front is public facing, just like some of the LI data is public facing. There is other LI data that is not public facing.
In my opinion, websites have a larger storefront, as well as multiple levels of access to internal data.
This seems really annoyingly tied to the technology of the web. If the public, non-authenticated web was built on a broadcast mechanism (like radio) instead of a request-response mechanism like HTTP, then this argument wouldn't apply. Hopefully the court considers whether it actually behaves more like the former than the latter.
If the public web was broadcast at a range of radio frequencies the result would indeed be different. But it isn't. In my view, law should be tied to reality.
The web isn't an abstraction, it's a network of privately owned servers responding to requests. This order tells a company that they can't program their servers to look at who is making the request and refuse to respond on that basis.
Even with request-response, I don't see how this would be to LinkedIn's benefit. Their server receives the request, and sends the response. If they don't want it to send the response, they can change it accordingly. If they send the response as usual, how could the request be trespassing?
But they aren't sending the response as usual. That's why HiQ sued them, and what the court said they must do: "To the extent LinkedIn has already put in place technology to prevent hiQ from accessing these public profiles, it is ordered to remove any such barriers"
Actually, it's not. In your analogy, the storefront is completely passive and unaffected.
What is actually happening, is that somebody is walking into the store, asks a question about the stock or the price of the products on sale, which the store employee willingly answers.
Then, all of the sudden, the store wishes to control what you do with the answer that was willingly given to you.
This is clearly absurd - and so too is wanting to control what people do with publically-available HTTP data. If it's public, it's public.
I personally do feel that LinkedIn is within their full rights to attempt to detect and restrict content being served to screen-scraping agents, but they must then accept that screen-scraping agents must be allowed to use any means necessary to impersonate a "normal" user browsing the (public) information that they publish.
No that's not what's happening. What was happening is that the store clerk was noticing that an employee from a competitor was coming in and asking questions about the price, and then refused to answer the questions. The judge ordered LinkedIn to respond to the competitors HTTP requests.
Where do you draw the line between this and a DoS flood of HTTP requests? At some point a provider has to be able to rate limit requests to maintain service for legitimate users.
I don't. I think owners of web servers should be able to selectively choose to respond to requests however they please (so long as they don't violate any e.g. civil rights laws).
