Linkedin is trying to make money from public information by controlling how people use their site. Linkedin’s legal position has some problems.

In January 2014, Linkedin filed a lawsuit against unknown defendants claiming that someone was creating fake accounts so they could exceed Linkedin’s allotted page view limits and take information from user profiles. Linkedin claims unauthorized use of Linkedin’s computers, copyright violations, and breach of its Terms and Conditions. A copy of the lawsuit is here.

In late March, Linkedin amended its lawsuit to name Hiring Solved as the company creating the fake profiles and taking the information. Linkedin also sent out a cease and desist letter to at least one other company, Sell Hack. (Matt Charney interviewed the owners of Sell Hack and has a great discussion of why Sell Hack wasn’t doing anything illegal.)

Linkedin is trying to make money from public information by controlling how people use their site. It’s the trouble with running what is basically a phonebook where people get to advertise themselves for free.

Linkedin’s legal position also has some problems.

Linkedin has sued under the Computer Fraud and Abuse Act (and a similar California law) that prohibits unauthorized use of someone else’s computer. Linkedin’s claim is basically that by creating fake user accounts, getting more than the allowed number of page views, and copying information from user accounts, the defendants exceeded their authority to use Linkedin.

However, it appears that defendants were using Linkedin’s website within their authority. Users have authority to look at member profiles and use Linkedin’s website, even if using the website gives users access to Linkedin’s computers. That’s what Linkedin is.

Copying data does not destroy  or damage either the website computers or its data, so a claim for misappropriation of information where the data is still intact on the host computers is not a Computer Fraud and Abuse Act claim. See  U.S. v. Czubinski.

There is also no indication that anyone intended to harm Linkedin’s computers, steal passwords, damage anything, or defraud anyone, which are the basic protections of the Computer Fraud and Abuse Act.

The real problem is that Linkedin is mad that someone copied information from its site.

Linkedin claims its priority is “Member’s First,” and that it’s just protecting its members’ information. Nobody joined Linkedin to keep their information private. Not ever. Linkedin is all about finding people and being found. So I don’t buy the position that Linkedin is protecting its members or the members’ interest.

Linkedin’s Do’s and Don’t (that are incorporated into their Terms and Conditions) also state that users are not allowed to “duplicate information” from Linkedin’s site. This is another example of Linkedin trying to have it both ways. Linkedin can’t collect the information, publish it, often charge people to use it, and then prohibit everyone from ever copying anything from the site. How exactly is a recruiter supposed to make use of a potential candidate’s information if she can never copy or independently use any information found on Linkedin? The only way is to exclusively use Linkedin’s tools within Linkedin, which is what this lawsuit is really about.

However, member information does not belong to Linkedin. Under Linkedin’s own terms and conditions, the content that a member puts on Linkedin belongs to the member, not Linkedin. Members give Linkedin a license to use it for pretty much whatever Linkedin wants. But Linkedin does not own the information or even have exclusive rights to control the information on its site.

Legally, no one owns facts about people such as their names, contact information, and work history. Facts are in the public domain.

This issue was decided by the United States Supreme Court back in 1991 in Feist Publications, Inc. v. Rural Telephone Services, Inc..  It was a battle over rights to the data in phonebooks. A telephone company published a phone book with a list of its customers names, towns, and telephone numbers. Another company then used that information to publish a larger regional phonebook. The first company sued claiming copyright violation because it was the one who had gone to all the work to compile the information, publish, and distribute it. The Supreme Court said it was okay for the second company to copy and use the information because the data was public and could not be copyrighted.

When you are compiling data that consists of facts such as census data, people’s names and contact information, historical, scientific, or any other objective fact, you can only copyright the format you present it in (assuming it is original in some minimal way).  But you can never own or copyright the facts.

 No matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking . . .. The very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the idea.

Copyright covers only the expression of information and ideas. It does not cover the information itself.

Here, Linkedin is claiming damage because someone copied information that Linkedin does not own, and that is fundamentally free for the taking.

There may be some wrangling about whether the information was copied from public profiles through a regular internet browser or whether the defendant used some method that is prohibited by Linkedin’s Terms of Service. But either way, Linkedin’s only claim for damages arises from the copying of information that Linkedin has no right to own or control.

Further Reading:

Here’s the rest of the series on data ownership:

Here’s John Sumser’s Article on the Linkedin Lawsuit

My post on innovation and lawsuits When Companies Stop Innovating

And Ideas are Free But Content Isn’t–Copyright and the Internet

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