SCN: Trespass

[Steve]

x-no-archive: yes

==========================

(Carl S. Kaplan, NY Times)---Robots beware. Life in cyberspace just 
got harder for you.  

Times first got really tough for robots -- those automated search 
programs that periodically crawl through Web sites extracting and 
copying information -- as a result of a controversial decision by a 
federal district court judge in San Francisco in May 1999. In that 
case, Judge Ronald M. Whyte relied on the ancient law of trespass 
to chattels to temporarily ban an Internet company from using a 
"bot" to invade and copy auction listings from the computer system 
of eBay, the auction giant.  

Now a federal judge in Manhattan has picked up on the trespass 
idea and altered its requirements a bit, making it even easier for 
companies to use the law to stop the pesky software critters, some 
lawyers say.  

The upshot, critics of the latest ruling say, is that the easier it 
becomes to use the law to thwart robots, the easier it becomes for 
some companies to lock up or selectively protect publicly available 
information.  

"A lot of people are looking for some legal hook" to keep public 
information on their sites away from competitors, said Dan L. Burk, 
an expert in Internet law who teaches at the University of Minnesota 
Law School. He added that he expects to see "an enormous 
proliferation" of trespass cases against robots in the coming 
months.  

The latest decision concerning software robots came about in a 
legal batte between Register.com Inc. and Vario Inc.  

Register.com is a company that registers Internet domain names for 
customers. Under agreements with the Internet Corporation for 
Assigned Names and Numbers, the non-profit corporation known as 
ICANN that runs cyberspace's domain name system, all registrars, 
including Register.com, must provide the public access to an on-
line, interactive "Whois" database containing the names and contact 
information for their domain name customers.  

According to legal papers, Vario Inc., a Web site hosting and Internet 
access company, began using a software robot in 1999 to 
automatically search Register.com's customer database for sales 
leads. Register.com filed a lawsuit last August, claiming that Verio's 
use of the automated search robot and its end use of the Whois data 
was unauthorized and in any case violated its "terms of use," which 
prohibit third parties from using the contact-information for mass 
marketing purposes. The company charged Verio with trespass to 
chattels, breach of contract and other claims.  

Last month, Judge Barbara S. Jones of federal district court in 
Manhattan issued a preliminary injunction barring Verio from using 
robots to harvest data from Register.com's computers for mass 
marketing purposes. The court found that it was likely Register.com 
would prevail on its trespass, contract and other claims.  

The court's trespass analysis warrants some scrutiny. Trespass to 
chattels occurs when there is an intentional and unauthorized 
interference with the personal property of another that causes the 
victim to suffer a degree of harm.  

How much harm? That's the key question. In the eBay case, which 
Judge Jones relied upon, eBay offered evidence that the burden on 
its computer servers from Bidder's Edge's web crawler represented 
between 1.11 percent and 1.53 percent of the total load. However 
slight, that degree of interference was harm enough, the judge said, 
because eBay in effect was prevented from using that portion of its 
personal property for its own use. The court also reasoned that if it 
did not grant an order stopping the Bidder's Edge robot, there would 
be a green light for other robots from other companies to invade 
eBay's servers -- risking a crash or substantial impairment of 
eBay's computers.  

The eBay case is on appeal to the United States Court of Appeals for 
the Ninth Circuit in San Francisco. Oral arguments are scheduled for 
next month.  

The harm in the New York case was arguably less than that 
demonstrated in the eBay case. Register.com offered evidence that 
its computer system's resources were diminished by about 2.3 
percent owing to Verio's robot. In her opinion, Judge Jones said that 
the harm estimate was "thoroughly undercut" by Vario in pretrial 
discovery, however. She added that Register.com's evidence of 
harm was "imprecise." Nevertheless, Judge Jones concluded that 
Verio's search robot occupied "some" of Register.com's system 
capacity. And because some unmeasured portion of Register.com's 
computer property was not available to the company, that was harm 
enough, she said -- especially when combined with the eBay notion 
that the failure to issue an injunction risks a pile-on from other 
robots in the wings.  

Vario is appealing the ruling to the United States Court of Appeals for 
the Second Circuit in Manhattan. It has also filed a petition with 
ICANN to terminate Register.com's accreditation.  

Michael A. Jacobs, a lawyer for Vario, said in an interview that Judge 
Jones, in effect, said that a showing of present harm was no longer 
a necessary requirement for trespassing on a computer web site. "In 
eBay, they showed a 1 or 2 percent" crunch on eBay's system 
capacity, he said. In his case, even though Register.com's 
allegation of 2 percent "blew up," he added, "the judge found a 
sufficient risk of harm. It was literally unprecedented."  

William F. Patry, a lawyer for Register.com, said that it was 
reasonable for Judge Jones to rule that a sufficient showing of harm 
was made. "If your property is the computer system and somebody 
comes in and uses it in a way that violates the terms of use," he 
asserted, the owner can say, " 'Wait, you're using my system under 
conditions that I said you couldn't.' "  

It may be true that the particular use "won't crash my system," Patry 
said, but any use of the personal property diminishes the owner's 
rights to a degree. He added that it was not "so crazy" for the court 
to rule that Register.com's computer response time might be 
significantly slowed if other companies began to use robots to 
hammer on Register.com's database.  

Professor Burk, who has written about trespass and the Internet, and 
who co-wrote a friend-of-the-court brief in the eBay case, said that 
the trend of the cases seems to be that less and less a showing of 
harm is required to get an injunction against an unauthorized robot.  

Under the reasoning in the Register.com case, "you don't have to 
prove harm or show any evidence of harm," he said. "Harm will be 
presumed." He said that he fears the Register.com case will "spread 
like Kudzu" through the court system.  

The neutering of the harm element had important implications, 
warned Burk. "The way the Net works is by moving electrons around 
and sharing processing capacity," he said, adding that trespass to 
chattels in cyberspace has now been defined "in such a way that 
everything that goes on in the Net is a possible trespass."  

He added: "If I don't like your linking to my site, or searching my 
site, even though it is open to the public, and I say, 'Stop,' you have 
to stop . . . whether you are actually hurting me or not."  

Copyright 2001 The New York Times Company





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