>> The ruling in this case, has said it isn't

> No it didn't.

True. I should have said, "the ruling in this case, has said it isn't clear if the agreement should be binding".

> HiQ is claiming they should be able to take LinkedIn's copy because the data is "public" data.

Nobody is taking anybody's data. LinkedIn are providing copies of the data to anybody who views the page. You can't take something from somebody else in this context. It is not possible. Copying, and ineffective deleting are the only methods available for transfer.

> In practice, the issue of having to access the site to view the license isn't a problem. You can choose after reading the EULA to not agree, and you can choose to not access any other data on LinkedIn.

It is absolutely a problem. You don't view data. You download a copy.

You are not presented with the agreement upon visiting a public page, you first download the public page, which then links to the agreement.

Thus, when the agreement becomes enforced, you already have in your possession data from before you agreed, which is then governed by rules you were not aware of, and may not become aware of as the agreement doesn't require intervention.

If we have to come up with physical analogies for a problem that is inherently digital:

You walk into a store. The store hands you a CD, that they made just for you, saying its yours.

You then say thankyou, and only then does the store say that there are conditions attached. But you can't give the CD back. You can only agree that you will destroy it at an indeterminate time in the future. And your method of destruction is almost guaranteed to be reversible, but its all you have.

Oh, and you might not have chosen to even walk into the store. You were stumbling around other stores, and a door led you here.

In common law, once possession is established, new conditions on the possessed item are next to impossible to apply, unless the method of possession was itself a crime.

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> But there is no reason to assume the EULA is not binding because there are no other legal documents that cover your interaction with LinkedIn, aside from any state and federal laws that might override parts of the EULA.

A EULA, as its name suggests, is a license agreement. So far as I'm aware, most nations capable of accessing LinkedIn have a definition of a license agreement. Insofar as I'm aware, they all require a license agreement to at least be:

"A valid agreement between two parties, where both parties have read, understood and accepted responsibilities (or had ample opportunity to do so), pertaining to the use of the licensed item."

Prior knowledge is a requirement. You can't agree to something you haven't had the opportunity to comprehend.

But LinkedIn happily gives you a copy of their data before you are able to access the agreement. (Such as if your first visit was to a public profile page).

There are many laws that may invalidate the EULA.

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> It's purpose there is to establish that LinkedIn is not providing a public service.

Its purpose is irrelevant if it is not binding.

A store can put a sign up, saying that only customers who buy a product before leaving may enter. But if someone does, the store cannot force the individual to make a purchase, because their policy was in conflict with other systems of rights.

If something is non-binding, and therefore invalid, it cannot be applied as... It has no validity.

If you have a driver's license, but it became invalid for some reason, you would not be permitted to continue driving, until such time as it became valid.

If the ownership of your house became questionable, you would be squatting.

The non-binding status of any agreement that becomes invalid, regardless of intention, is a problem in law, but it isn't a solved one.

If a license is invalid, you are not bound by it.

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Caveat: I'm no longer a registered lawyer, as of two years ago. I may not be up-to-date on some things, and my main knowledge was in cross-border and Australian crime, specifically in the realm of IT.