The Ninth Circuit’s ruling in hiQ v. LinkedIn, granting hiQ’s injunction against LinkedIn and its review of the tortious interference with contract alleged against LinkedIn, is a huge win for the data mining industry, and an overwhelming affirmation that the public has the right to access public data. This landmark ruling is also a massive win for legal tech companies aggregating public data to build legal analytics, as well as their clients who rely on those analytics for business development, competitive intelligence, and many other innovative uses.
On the facts, LinkedIn could not have been more egregious in the way it specifically blocked hiQ from mining publicly available data that it also expressly does not claim an ownership interest over. LinkedIn studied the business model of hiQ, sent senior representatives to presentations on hiQ’s products for large enterprise clients like eBay, and then turned off hiQ’s access to data right as they released a competing product offering.
But the larger picture is not about what LinkedIn did in this particular instance – it’s about how similar attempts to circumvent and prevent data mining by large court technology providers, contracted by states to provide access to court records, are also having a chilling effect on innovation in legal analytics.
Without being able to aggregate millions upon millions of data points from court records, certain litigation analytics products would not be possible without paying exorbitant costs for bulk access to data (that most courts do not offer), and innovation will continue to languish where restrictive costs and practices preclude all but a handful of incumbents to obtain meaningful access to public data.
Putting hiQ in Perspective
hiQ vs. LinkedIn matters just as much as Georgia v. Public.Resource.Org matters for legal data aggregation. We know that if past is prologue, a handful of incumbents will continue to assert copyright in the law; they will divvy up shares of the legal analytics market, just as they did for decades with legal research to prevent others from entering the market.
Public means public, and public data is no different. For better or for worse, the United States has one of the most free and open information societies across the globe. We respect the public’s Right to Know and we weigh the public’s interest in our law, just as the Ninth Circuit in hiQ, and the Eleventh Circuit in Public Resource, measured how allowing copyrighting of the law would be detrimental to the public interest.
If larger players can corner off the market by preventing data mining or by copyrighting the law, access to meaningful analytics will be at stake, and there will be legal technology deserts in certain states and locales.
It’s not hard to picture a situation where the large court technology providers develop repressive Terms of Service, throw around threats of civil and criminal penalties for aggregating and publishing public data, and seek to prohibit selling competing legal analytics derived from public data, because that already exists.
There are countless counties and states across the U.S. where providers and/or the state and local governments contracting with them claim ownership over public court data and maintain that you can’t scrape, resell, or use it for commercial purposes. In other words, no one is allowed to compete with them without paying a handsome amount for bulk access, without putting themselves at risk of prosecution and/or crippling litigation, or without waiving their basic constitutionally protected rights of freedom of expression.
The changing structure of the legal profession, from what’s happening in Utah and Oregon, to the California State Bar’s ATILS Task Force and other pushes to open access to legal services, are important strides forward for promoting access to justice, but they would fall short of their potential if not paired with open access to data. Legal innovation in the legal profession hinges on access to data, and really bulk access to data to make use of it at scale.
What We Know
We already know from LinkedIn what the playbook is – turn off the hose and starve competitive innovation. And we already have prominent examples of how this is being executed in the legal profession with Georgia and LexisNexis locking arms to squash all comers. But there are other examples. Tyler Tech in Texas, Judici in Illinois, and others have erected technical barriers at the outset to prevent and/or put a price tag on competitive innovation.
They’ve thrown in the kitchen sink in their Terms of Service and threaten against using bots to grab data or reselling that data, even though it’s public data and only in their possession because of lucrative contracts secured with state and local governments. They know that without access to public data, smaller legal tech companies won’t be able to survive, let alone thrive, and take their market share.
The good news is that Courts have repudiated these efforts, and the facts could not be clearer in favor of open access in hiQ and Public Resource, but the fight is not yet over. hiQ still has a case to litigate against LinkedIn (we’ve only had a ruling on the initial injunction), and SCOTUS needs to land the plane to once and for all assert that the law can’t be copyrighted.
What comes next is states following suit to take the much needed position that private companies contracted to facilitate public access to public data don’t own the law, that they can’t prevent others from mining that data, and that they can’t prevent competitors from developing new and innovative products capable of advancing and improving the legal system.
Josh Blandi is the CEO and Co-Founder of UniCourt, a SaaS offering using machine learning to disrupt the way court records are organized, accessed, and used. UniCourt connects attorneys, businesses, and consumers to the records they need and enables them to tap into the mountain of court data generated everyday for legal analytics, business intelligence and development, background checks, case research, and many other innovative uses.
