Trespass, Computers, and Networks

1. Trespass, Computers, and Networks

2. The Generic Fact Pattern Scattered data Benefits at least some consumers Collected organized data

3. eBay v. Bidder’s Edge (N.D. Cal. 2000) • eBay is an auction web site on which sellers list items for sale, and prospective buyers post bids and track the status of auctions. • eBay is by far the largest of hundreds of similar sites.

4. The Price Comparison Dilemma • 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 proposed to solve this dilemma.

5. Bidder’s Edge • 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 that automatically search the Internet for relevant information.

6. Revocation of Consent • eBay informed Bidders’ Edge that it was no longer authorized to access eBay. • “On November 9, 1999, eBay sent BE a letter reasserting that BE’s activities were unauthorized, insisting that BE cease accessing the eBay site, alleging that BE’s activities constituted a civil trespass and offering to license BE’s activities.”

7. The Court on Consent • Probably no implied consent in the first place. • “eBay does not generally permit the type of automated access made by BE. In fact, eBay explicitly notifies automated visitors that their access is not permitted.” • Revocation effective anyway. • “Moreover, eBay repeatedly and explicitly notified BE that its use of eBay's computer system was unauthorized.” • Bidder’s Edge continued to attempt to access the eBay site.

8. Trespass to Chattels • One is liable for trespass to chattels if • one intentionally, and without authorization, • uses the property of another • in a way that • impairs its value, • or harms a protected interest.

9. The Court’s Argument • “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 eBay's computer system required to constitute a trespass.”

10. Impairment of Value • “However, it is undisputed that eBay’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 eBay’s computer system capacity, BE has nonetheless deprived eBay 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).

11. The Breadth of the Right • 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.

12. Buchanan Marine v. McCormack Sand • 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.

13. Private Property • 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.

14. Intel v. Hamidi(2003) • 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?

15. No Impairment of Value • 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 eBay approach. The mere use of another’s computing capacity is not sufficient to impair value.

16. No Harm To A Relevant Interest • The majority also held that Hamidi’s access did not harm any legally protected interest appropriately related to that system. • In 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.

17. Which Approach Is Best? • Should we follow eBay or Intel? • We can begin by seeing what influenced the Intel court.

18. The Consequences for the Internet • First: The growth and vitality of the Internet depend on e-mail communication, hyperlinking, and the search-engine index. • Second: These features thrive on implied-permission access. • Third: Recognizing a right to prevent access– potentially—reduces implied-permission access and hence threatens the growth and vitality of the Internet.

19. Critics of Trespass • Mark Lemley contends that the courts failed to grasp the real issue. • The courts saw the issue as one of personal property: Does an Internet system owner have the right to control access to the computer equipment? • Lemley insists that the issue was information. The cases “were really efforts to control the flow of information to or from a site.” • Mark A. Lemley, Place and Cyberspace, 91 Cal. L. Rev. 521, 529 (2003).

20. Apocalypse Now? • Dan Hunter warns that the “legal propertization of cyberspace . . . is leading us to a tragedy of the digital anti-commons.” • An anti-commons is a distribution of property rights that imposes disastrously inefficient restrictions on access.

21. The Anticommons • He contends that “[r]ecent laws and decisions are creating millions of splintered rights in cyberspace . . . Historians will look back on our time and wonder–when we have seen what the Internet could be–how we could have sat and watched the tragedy of the digital anti-commons unfold.” • Dan Hunter, Cyberspace As Place, 91 Cal. L. Rev. 439, 444 (2003).

22. The Internet Variation • Rex owns and runs Web Babes (WB), a web site consisting of a collection of hyperlinks to web pages with pictures of women. • WB links to resumes containing pictures of women; to personal web sites displaying pictures of vacations; and so on. • Rex catalogues the pictures in terms of attractiveness on a 1 to 10 scale.

23. Vicki and Sally • He collects the links using automated robot search software which he sends to publicly accessible web sites. • Vicki and Sally maintain a personal web site on which each displays vacation pictures. • Rex links to the sites. • Vicki is offended and Sally wants a fee.

24. Trespass? • Rex continues to search the site. • Is this a trespass. The Intel approach would answer “no.” • No damage to a computer or harm to a relevant economic interest.

25. The Non-Internet Variation • Vicki and Sally live in a small town where they are among the many who keep albums of their vacation pictures on their front porches. • Rex visits the porches regularly and summarizes his findings on his web site. • In this variation, trespass to land and trespass to chattels protect Vicki’s freedom and promote a market exchange between Rex and Sally.

26. An Artificial Approach • Vicki: Vicki’s complaint is that she is offended, and her claim is that she should be able to protect herself by excluding Rex. • Why make the question of whether she can prevent Rex from accessing her site depend on whether the access significantly interferes with a computer or causes a relevant economic loss? • Sally: Why should Sally’s ability to exclude Rex unless he pays depend on whether a computer is harmed or there is some other relevant loss related to that harm?

27. Intel Itself • Intel presents a conflict is between Intel’s controlling its e-mail system, and ensuring that employees have an effective way to voice their complaints about their employers. • It is artificial to force debate about this issue into a doctrinal framework that takes as the central doctrinal question whether a computer has been significantly impaired in its performance.

28. A Better Alternative • Go back to eBay; count any use of computing capacity as an impairment of value. • To see how to limit the right, recall • That trespass to chattels involves intentional, unauthorized access; and • That by making an Internet system publicly accessible, the system owner impliedly consents to public access.

29. Limiting the Right • So: we can limit the right to prevent access by developing a doctrine about • when consent is implied, and • when the implied consent is revocable.

30. Implied Consent • Consent is not implied when access illegally uses or obtains stored information. • It is not implied to access that intentionally or negligently harms or may harm the system’s hardware or software, or that corrupts information it contains. • Consent is otherwise implied to any access that the design of the system allows.

31. Revocability • The critical question is when implied consent may be revoked. • We balance freedom and efficiency against the interests served by implied-permission access. • Searching • Hyperlinking • E-Mail