Trespass to Chattels e Bay and Intel Richard

Trespass to Chattels: e. Bay and Intel Richard Warner

Three Questions o o o First: to what extent does one impliedly consent to access by the general public when one connects a publicly accessible system to the Internet? Second: can one always revoke consent by notifying third parties that their access is unauthorized? Third: when does access by a third party impair value or harm a relevant interest?

e. Bay v. Bidder’s Edge o o o The leading case is e. Bay v. Bidder’s Edge. e. Bay is an auction web site on which sellers list items for sale, and prospective buyers post bids and track the status of auctions. e. Bay is by far the largest of hundreds of similar sites.

e. Bay v. Bidder’s Edge o o The large number of sites creates a dilemma for buyers. Should a buyer search one site, or a few sites, and settle for the best combination of price and quality the limited search reveals? Or, is a broader search worth the extra effort? Bidder’s Edge solves this dilemma.

The e. Bay Fact Pattern o o Bidder’s Edge allows a buyer to perform a single search on its site, where that search yields a list of all relevant items for sale on over one hundred other auction sites. Bidder’s Edge accomplishes this feat through software robots–often called “spiders”–that automatically search the Internet for relevant information.

Revocation of Consent o “On November 9, 1999, e. Bay sent BE a letter reasserting that BE's activities were unauthorized, insisting that BE cease accessing the e. Bay site, alleging that BE's activities constituted a civil trespass and offering to license BE's activities. ”

The Court on Consent o o “BE argues that it cannot trespass e. Bay's web site because the site is publicly accessible. BE's argument is unconvincing. ” “e. Bay's servers are private property, conditional access to which e. Bay grants the public. ”

The Court on Consent o o o “e. Bay does not generally permit the type of automated access made by BE. In fact, e. Bay explicitly notifies automated visitors that their access is not permitted. ” “Moreover, e. Bay repeatedly and explicitly notified BE that its use of e. Bay's computer system was unauthorized. ” Bidder’s Edge continued to attempt to access the e. Bay site.

Like Compu. Serve? o o o This looks like the Compu. Serve fact pattern; we have intentional, unauthorized access. But does the access impair the value of e. Bay’s computers, or harm some relevant legally protected interest? The court holds that the access impairs value.

Bidder’s Edge’s Argument Against o “BE argues that its searches represent a negligible load on plaintiff's computer systems, and do not rise to the level of impairment to the condition or value of e. Bay's computer system required to constitute a trespass. ”

Impairment of Value o o “However, it is undisputed that e. Bay's server and its capacity are personal property, and that BE's searches use a portion of this property. Even if. . . its searches use only a small amount of e. Bay's computer system capacity, BE has nonetheless deprived e. Bay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property” (emphasis added).

The Breadth of the Right o o o Consider: Any access to a server for any purpose uses some portion of that personal property for that purpose. Thus: any unauthorized use impairs value. So: a system owner can turn any access into a trespass simply by informing the other party that such access is no longer authorized.

Buchanan Marine v. Mc. Cormack Sand o o o The defendant moored its barges to the buoy the plaintiff built and maintained for use by its tugboats. (743 F. Supp. 139 (1991)). The court found a trespass to chattels and issued an injunction without requiring the plaintiff of show any harm other than being deprived of the use of its property. It did not matter whether the plaintiff desired to use the buoy at the time the defendant was using them.

Private Property o o It was the potential deprivation that mattered. The buoy did not become available for use by others as soon as the owner was not using it. To hold otherwise would be inconsistent with the fact that the buoy is private property. An owner of private property has the right, within broad limits, to decide that no one shall use the property.

Linking and Trespass o o o Linking is another source of trespass to chattels claims—although creating a link is not a trespass Mere creation involves no access; access occurs when one uses the link. So how is trespass relevant?

An Analogy o o o Y rents factory space from X. The space contains a machine that Y wants to use, but, X and Y cannot agree on rental terms, so X locks the switch that starts the machine. Jones, a former employee of X, obtains the key and, without any authorization, unlocks the switch knowing that Y will use the machine, which Y does. Jones is liable for trespass to chattels as he intentionally and foreseeably contributed to the unauthorized use of the machine.

Linking and Trespass o o o Links are similar. The linking site knowingly and intentionally facilitates access to the linked-to system. The access uses some of the system’s computer capacity, hence, if the access is unauthorized, it impairs value (according to e. Bay).

Intel v. Hamidi o o Hamidi, a former Intel employee, sent e-mails to current employees criticizing Intel’s employment practices. On each of six occasions, he sent up to 35, 000 e-mails, despite Intel’s demand that he stop. This is intentional, unauthorized access. Does it impair value or harm a relevant interest?

No Impairment of Value o o o The majority held that the e-mails did not impair the value of Intel’s e-mail system. The amount of e-mail was relatively small and did not slow down or shut down Intel’s system. This holding rejects the e. Bay approach. The mere use of another’s computing capacity is not sufficient to impair value.

No Harm To A Relevant Interest o o o The majority also held that Hamidi’s access did not harm any legally protected interest appropriately related to that system. In the spam cases, courts have counted an ISP’s loss of business reputation and customer goodwill as a relevant harm. But in those cases, the harm arose from the number of messages; here it arises from their content. The court thinks that this means the harm is not appropriately related to the chattel.

Which Approach Is Best? o o Should we follow e. Bay or Intel? We can begin by seeing what influenced the Intel court.