SCN: Trespass

[Steve]

x-no-archive: yes

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(Carl S. Kaplan, NY Times)---Concerned that a recent federal court 
ruling dangerously extends the ancient law of trespass to 
cyberspace, 28 leading Internet legal scholars are arguing in an 
appellate court that the decision "threatens the very foundations of 
the Internet."  

The red-alert language of the professors is aimed in part at drawing 
attention to a legal dispute in California between auction giant eBay 
and a smaller rival, Bidder's Edge, that raises important questions 
about property rights in the digital age.  

In May, Judge Ronald M. Whyte of the United States District Court in 
San Jose issued a preliminary injunction barring Bidder's Edge from 
using a software robot to crawl though eBay's computer servers 
without authorization. An aggregator of auction information from 
many sites, Bidder's Edge had used its robot, or "spider," to extract 
information about eBay's auction listings. Bidder's Edge then 
placed the information -- which is not protected by copyright because 
it is considered a set of facts -- in its own database so that its 
customers could search eBay's listings, and others, rapidly.  

In issuing his order, Judge Whyte found that Bidder's Edge likely 
engaged in an old common-law wrong known to lawyers as a 
trespass to chattels, which is an unauthorized interference with 
another's personal property that causes a degree of harm. The court 
reasoned that Bidder's Edge's electronic signals, which reached 
eBay's servers despite eBay's efforts to foil them, meddled with the 
giant company's computer system and ate up a small portion of its 
capacity. In addition, Judge Whyte said that if he failed to issue the 
temporary ban, then perhaps dozens of other auction aggregators 
would feel free to invade eBay's computers and cause more 
significant harm.  

Bidder's Edge has appealed the decision to the United States Court 
of Appeals for the Ninth Circuit in San Francisco. A hearing has not 
yet been scheduled but is likely to take place in the fall, said James 
Carney, chief executive of Bidder's Edge.  

A friend-of-the-court brief was submitted last month by a Who's Who 
of Internet law professors -- including Mark Lemley and Pamela 
Samuelson, both of the University of California at Berkeley; 
Lawrence Lessig, formerly of Harvard and now of Stanford; Yochai 
Benkler of New York University; and Julie Cohen of Georgetown Law 
Center. In it, the professors argue that the trespass to chattels 
theory, if unstopped, could cause the public great harm.  

For one thing, the professors argue, the trespass theory as 
embraced by Judge Whyte would allow Web sites to fence off non-
copyrighted information that should be available to consumers. For 
example, they assert, the resulting enclosure movement could chill 
the ability of shopping comparison sites to ferret out information 
about a company's products and prices, retarding the growth of e-
commerce.  

In addition, because the Internet is built on the exchange of 
electronic signals, the trespass theory can be used by a Web site to 
prevent many types of online transactions, the professors warn. 
They contend that unauthorized linking would be in danger, as are 
general search engines.  

Dan Burk, a law professor at the University of Minnesota Law 
School and one of four primary authors of the brief, acknowledged in 
an interview that the trespass to chattels theory may have limited 
use in the Internet context when a user's uninvited access of 
another's Web site server results is a significant harm, such as 
slower operations and loss of customers. That was the situation in 
several spam cases, he said, where courts approved the trespass 
theory. But in the eBay case, the harm to eBay's servers was trivial, 
he said.  

"I think this case should get a lot more attention than it has," Burk 
said, adding: "We don't want eBay or others to fence off what the 
public should have access to."  

Lemley, another co-author and one of the organizers of the 
professors' group, said that he and Professors Samuelson, Burk 
and Maureen O'Rourke of Boston University School of Law 
exchanged private e-mails following Judge Whyte's preliminary 
injunction decision "and decided it was appropriate to do 
something."  

"How this case goes may well have significance for what other 
courts do," Lemley said, adding that to date no federal court of 
appeals has examined the trespass theory in the context of the 
Internet.  

It should come as no surprise that eBay and its supporters poo-poo 
the professors' arguments. "I think it's a Chicken Little p.r. tactic that 
has no basis in fact," Jay Monahan, an in-house lawyer for eBay, 
said in an interview.  

Monahan said that the court's order was narrow: It prevents Bidder's 
Edge from using a robot to crawl through eBay's computers, which, 
he said, are unquestionably eBay's personal property. The order 
does not prevent consumers or anyone else from searching eBay 
listings, he said. Thus the professors' fears of fencing-in data are 
unjustified. He added that Bidder's Edge aside, most search engine 
robots routinely obey "no trespassing" signs embedded in a Web 
page's code.  

In addition, Monahan said that the Bidder's Edge spider routinely 
visited eBay servers about 100,000 times a day before the 
injunction was issued. That meant the eBay computers were 
devoting about 1.3 percent of their capacity to handling the Bidder's 
Edge traffic -- sufficient harm to trigger a court remedy, he said.  

Indeed, one prominent legal scholar believes that Judge Whyte did 
not go far enough. Richard. A. Epstein, a law professor at the 
University of Chicago, filed his own friend-of-the-court brief earlier 
this month arguing that courts should think of a Web site and its 
supporting servers as a form of real property, like land, rather than a 
chattel or a piece of personal property. After all, a Web site is not 
moveable and its servers may be occupied day-to-day by an 
electronic intruder.  

The upshot, argued Epstein, is that if a server is viewed as akin to 
land, then the owner may kick off a trespasser without any showing 
of harm at all. That valuable right would induce Web site owners to 
bargain over access rights, to the benefit of all, he asserted.  

Epstein wrote his brief on behalf of the British-Dutch publishing 
company Reed Elsevier P.L.C., the National Association of Realtors 
and a coalition of e-commerce companies -- all of whom publish 
information online and have been actively lobbying Congress for 
increased protection of online databases.  

Copyright 2000 The New York Times Company






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