Access and Control

1. Access and Control Contract System Criminal Access $5,000 State + Federal

2. Access and Control Contract System Criminal Access $5,000 State + Federal Content Protect

3. Access and Control Contract System Trespass Criminal Access $5,000 State + Federal Content Protect

4. Issues • Type of system/ site • Measure of liability • Dollar Amount of Harm • Level of Warning/ Posting • Right of Control vs Right of Access • Type of Intrusion or use • Pure Outside • Outside exceeding permitted • Internal exceeding permitted

5. Trespass as an issue • In order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish: • (1) defendant intentionally and without authorization interfered or intermeddled with plaintiff's possessory interest in the computer system; and • (2) defendant's unauthorized use proximately resulted in damage to plaintiff. • Analogy to my car or your house?

6. Ebay v. Bidders Edge • BE creates central information site; 69% of content is Ebay content • Robotic access to Ebay to collect data; does not use robot exclusion file route • No copyright issue – this is data • After trial period, Ebay not agree to format of access • Preliminary Injunction? • Granted

7. Injunction standards: Balance of Harm • The first type of harm is burdening eBay's computer system ("system harm"). • The second is as a result of BE's misrepresentations regarding information it obtains ("reputational harm"). • eBay does not move for relief tailored toward alleged reputational harm. • Economic harm: • Load on computers now (1-2% • Load from total “crawling • eBay's argument is that eBay expended time, effort and money to create its computer system, and that BE should pay for the portion of eBay's system BE uses. • Expenses not incrementally incurred • California law - measure of damages is the actual harm inflicted by the conduct.

8. 100,000 Robots • Right to injunction: • Robots analogy rejected – why? • “This analogy, while graphic, appears inappropriate” • Not real estate or brick and motor • “the robots would have to make up less than two out of every one‑hundred customers in the store, the robots would not interfere with the customers' shopping experience, nor would the robots even be seen by the customers. Under such circumstances, there is a legitimate claim that the robots would not pose any threat of irreparable harm.” • Recall: this is the preliminary injunction part of the opinion

9. The stronger argument • “If BE's activity is allowed to continue unchecked, it would encourage other auction aggregators to engage in similar recursive searching of the eBay system such that eBay would suffer irreparable harm from reduced system performance, system unavailability, or data losses. • “Reduced system performance, system unavailability or data loss would inflict irreparable harm on eBay consisting of lost profits and lost customer goodwill. Harm resulting from lost profits and lost goodwill is irreparable because it is neither easily calculable, nor easily compensable ….” • Analogy to patent infringement – (p.6) – compulsory licensees. • Where, as here, the denial of preliminary injunctive relief would encourage an increase in the complained of activity, and such an increase would present a strong likelihood of irreparable harm, the plaintiff has at least established a possibility of irreparable harm.

10. Added point • [There] is a dearth of authority supporting a preliminary injunction based on an ongoing to trespass to chattels. In contrast, it is black letter law … that an injunction is an appropriate remedy for a continuing trespass to real property.If eBay were a brick and mortar auction house with limited seating capacity, eBay would … be entitled to reserve those seats for potential bidders, to refuse entrance to individuals (or robots) with no intention of bidding on any of the items, and to seek preliminary injunctive relief against non‑customer trespassers eBay … The analytic difficulty is that a wrongdoer can commit an ongoing trespass of a computer system that is more akin to the traditional notion of a trespass to real property, than the traditional notion of a trespass to chattels, because even though it is ongoing, it will probably never amount to a conversion. … BE's ongoing violation of eBay's fundamental property right to exclude others from its computer system potentially causes sufficient irreparable harm to support a preliminary injunction.

11. Success Issue • Argues that it’s a public site • Explicit notice – how • Terms of use • Robot excluders • Written notice here • Exceeds access consent

12. Argues: no intermeddling • “Although the court admits some uncertainty as to the precise level of possessory interference required to constitute an intermeddling, there does not appear to be any dispute that eBay can show that BE's conduct amounts to use of eBay's computer systems.” • Proof of harm – in future • Ticketmaster – public site – no trespass • Harm – more required.

13. Register.com (2nd Cir.) • Verio also attacks the grant of the preliminary injunction … premised on Register's claim of trespass to chattels. Verio contends the ruling was in error because Register failed to establish that Verio's conduct resulted in harm to Register's servers and because Verio's robot access to the WHOIS database through Register was "not unauthorized." We believe the district court's findings were within the range of its permissible discretion. … The district court found that Verio's use of search robots … consumed a significant portion of the capacity of Register's computer systems. While Verio's robots alone would not incapacitate Register's systems, the court found that if Verio were permitted to continue to access Register's computers through such robots, it was "highly probable" that other Internet service providers would devise similar programs to access Register's data, and that the system would be overtaxed and would crash. We cannot say these findings were unreasonable.

14. Preemption • Section 301: preempts any state law that is equivalent to copyright • Does it apply here? • Nature of claim – taking info or taking tangibles • “The right to exclude others from using physical personal property is not equivalent to any rights protected by copyright and therefore constitutes an extra element that makes trespass qualitatively different from a copyright infringement claim.”

15. Intel v. Hamidi • Disgruntled employee • Six mass mailings sent to thousands • Intel cannot block!! • Sue for Trespass • Held: none • Very split decision • we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor's use or possession of, or any other legally protected interest in, the personal property itself.

16. In [other] cases, … the underlying complaint was that the extraordinary quantity of UCE impaired the computer system's functioning. In the present case, the claimed injury is located in the disruption or distraction caused to recipients by the contents of the e‑mail messages, an injury entirely separate from, and not directly affecting, the possession or value of personal property.

17. Basis • Little Brother: “Dubbed by Prosser the "little brother of conversion," the tort of trespass to chattels allows recovery for interferences with possession of personal property "not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.“ • In modern American law generally, "[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort" of conversion.

18. [The] undisputed evidence revealed no actual or threatened damage to Intel's computer hardware or software and no interference with its ordinary and intended operation. Intel was not dispossessed of its computers, nor did Hamidi's messages prevent Intel from using its computers for any measurable length of time. Intel presented no evidence its system was slowed or otherwise impaired by the burden of delivering Hamidi's electronic messages. Nor was there any evidence transmission of the messages imposed any marginal cost on the operation of Intel's computers. In sum, no evidence suggested that in sending messages through Intel's Internet connections and internal computer system Hamidi used the system in any manner in which it was not intended to function or impaired the system in any way. Nor does the evidence show the request of any employee to be removed from FACE‑Intel's mailing list was not honored. … A statement on the FACE‑Intel Web site, moreover, could be taken as an admission that the messages had caused "[e]xcited and nervous managers" to discuss the matter with Intel's human resources department.

19. Intel has demonstrated neither any appreciable effect on the operation of its computer system from Hamidi's messages, nor any likelihood that Hamidi's actions will be replicated by others if found not to constitute a trespass. That Intel does not claim the type of functional impact … is not surprising in light of the differences between Hamidi's activities and those of a commercial enterprise that uses sheer quantity of messages as its communications strategy. Though Hamidi sent thousands of copies of the same message on six occasions over 21 months, that number is minuscule compared to the amounts of mail sent by commercial operations.

20. Proper analogy

21. Proper analogy