That is not at all what that ruling says. The ruling just upholds an injunction until the case is decided. It explicitly does not pupport to provide any precedent on the legality of scraping.

That's not exactly right. You're correct the ruling only upheld a preliminary injunction. Like you imply, that's a provisional remedy before trial, subject to change. But in practice the court is unlikely to change its views about how the CFAA operates. And rulings about preliminary injunctions are frequently cited as precedent.

Here, the opinion strongly suggested the CFAA does not prohibit scraping of publicly available data:

"It is likely that when a computer network generally permits public access to its data, a user’s accessing that publicly available data will not constitute access without authorization under the CFAA." (Opinion at 33.)

Since this was a preliminary injunction, this passage won't be binding on other courts; however, it certainly will be cited as persuasive precedent. So will more policy-oriented passages like the following:

"giving companies like LinkedIn free rein to decide, on any basis, who can collect and use data—data that the companies do not own, that they otherwise make publicly available to viewers, and that the companies themselves collect and use—risks the possible creation of information monopolies that would disserve the public interest." (Opinion at 36.)

I am no legal expert, but the judge explicitly warns against reading too much into him upholding the injunction:

> I emphasize that appealing from a preliminary injunction to obtain an appellate court’s view of the merits often leads to “unnecessary delay to the parties and inefficient use of judicial resources.” Sports Form, 686 F.2d at 753. These appeals generally provide “little guidance” because “of the limited scope of our review of the law” and “because the fully developed factual record may be materially different from that initially before the district court.”

The opinion does cite other 9th circuit decisions that imply that the 9th circuit believes that the CFAA does not prohibit scraping, but also explicitly notes that the CFAA is not the only relevant law.

> We note that entities that view themselves as victims of data scraping are not without resort, even if the CFAA does not apply: state law trespass to chattels claims may still be available

I don't see where my claims overstep what is laid out in that opinion.

Edit: The opinion does indicate that there is a good chance that the 9th circuit will eventually rule that public scraping is not covered by the CFAA, but even if the 9th circuit Court does make that ruling, that still would not mean that scraping is legal under other laws.

Your point that other laws might (or might not) apply is a good one that people should note. "Trespass" is one. LinkedIn apparently alleged violation of the DMCA too. It chose not to press those issues in the appeal, so the opinion isn't direct authority regarding those other laws.

Where I disagreed is with your statement that the case "does not purport to provide any precedent on the legality of scraping." It does. It is persuasive precedent that the CFAA does not bar scraping publicly available data.

The first quote you mention ("I emphasize...") is from one judge's concurring opinion, not the court's full opinion. Further, the "little guidance" part of that quote doesn't mean that the opinion provides "little guidance" in general. The concurring judge was making the point that the parties shouldn't have delayed a full trial while waiting for the appeal. By "little guidance," he meant that the appeal provides "little guidance" to these particular parties about how a full-fledged trial will play out.

Please show me where there is a definitive statement in the opinion that the CFAA does not apply to scraping?

The language is very consistent and careful about not doing that because the court did not rule on that matter.

Something doesn't need to be "definitive" to qualify as precedent. See the quote I mentioned above at page 33 ("It is likely..."). That's precedent.

"Precedent" has a specific meaning here, in the context of legal cases:

> In common law legal systems, precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.[1][2][3] Common-law legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained.

There was no principle or rule established here regarding the CFAA, thus no precedent that must be considered by other courts.

Courts generally try to restrict their rulings to the minimal needed to decide any particular case.

If the court had made a ruling, they would not make a point of qualifying all the statements about the CFAA the way they did.

Sorry for just getting back to this.

The case did establish "principle[s]" that are "persuasive" for courts deciding subsequent cases. Put it this way: Say someone gets indicted for violating the CFAA by scraping a public site. You bet their attorneys will cite hiQ v. LinkedIn as persuasive precedent for dismissing the indictment. And the court, "when deciding" that case, absolutely will consider the Ninth Circuit's statement that it's "likely" that accessing "publicly available data will not constitute access without authorization under the CFAA."

Here's another point: When the Ninth Circuit decides a case, it chooses whether the decision is "published" or "unpublished." The Ninth Circuit rules expressly say that "unpublished" decisions are not precedent.

> Ninth Circuit Rule 36-3(a): "Not Precedent. Unpublished dispositions and orders of this Court are not precedent...."

Here, the Ninth Circuit chose to issue hiQ v. LinkedIn as a published case. If the Ninth Circuit wanted the case not to be precedent, it would not have done so, and easily could have made it "unpublished."