The Case for The Right to Prevent AccessRichard Warner

First Claim The case for the right rests on two claims. First: Internet systems contain information

that, absent a right to prevent access, receives legal protection against appropriation and use by third parties.

Purely factual compilations of data receive no copyright protection, and, absent a right to prevent access, the information can be searched and extracted by others.

Second Claim Second: it would promote both freedom and

efficiency to protect this information by a right to prevent access.

The right promotes freedom by allowing the property owner to decide who can have access to and use his or her property.

Protecting Freedom If we do not protect the freedom in this way,

how will we determine the extent to which Internet system owners have control over their property?

Are we going to invent a new approach? It is difficult to regulate appropriately when

confronted with rapid and revolutionary technological, cultural, and economic change.

The Sensible Course The sensible course is to start with a model

which is relatively well-understood and whose consequences are predictable with some accuracy; and then

adapt the model to the new situations we confront on the Internet.

Promoting Efficiency A commitment to a free market economy is a

commitment to letting market participants decide to what, when, and with whom they buy and sell.

Other things being equal, letting market participants decide is more efficient than taking the decision out of their hands

Efficiency and Property Rights Property rights play an essential role in placing

market decisions in the hands of market participants.

Not only do they define who is entitled to exchange what;

they also enable sellers to control with whom they share business resources and to whom they will sell, as well as where, when and how they do so.

In the brick-and-mortar world, trespass to land and trespass to chattels provide a business with a broad right to control access to its real and personal property Cullane v. State (282 Ark. 286, 668 S. W. 2d 24 (S. Ct.

Ark. 1984)

Why not do so on the Internet? Let’s look more closely at the need for such

protection.

Brick-And-Mortar Analogy

The eBay Business Context eBay’s revenue depends on a network effect. To see why, ask: why do buyers go to eBay?

Because it has the most items for sale. Why is that?

Because most sellers use eBay. Why? Because most buyers use it. So . . .

A Network Effect So: most buyers and sellers use eBay because

most buyers and sellers expect most buyers and sellers to use eBay.

This ensures that most buyers and sellers do in fact continue to use eBay,

which ensures that most buyers and sellers will continue to expect most buyers and sellers to use eBay,

which ensures that . . .

The Network Effect and Revenue eBay’s revenue depends on this network

effect. Its revenue comes from primarily from

transaction fees charged to sellers. The fees are relatively small, so eBay has to

have a large volume of sales. eBay’s size matters for this reason, and its

size is a function of the network effect.

Bidder’s Edge’s Threat Bidder’ Edge threatened to undercut eBay’s

network effect. Imagine large numbers of buyers had begun

to use Bidder’s Edge in preference to any other site, and imagine you are a seller.

Where should you post your item for sale?

It Does Not Matter No matter where you put it, buyers will find it

on Bidder’s Edge. Hence, sellers would no longer have a

powerful motive to post on eBay. eBay’s network effect would be undercut.

Defense for eBay? Should eBay be able to defend itself against

this threat? Surely it should. Does it already have adequate legal

protection?

Computer Fraud and Abuse Act

Does the Computer Fraud and Abuse Act provide the desired protection?

Only if eBay lost at least $5000 as a result of Bidder’s Edge’s activities.

eBay probably lost very little if anything.

What eBay Wants eBay is looking for an injunction to stop

Bidder’s Edge before it causes significant damage.

Compare EF Cultural Travel v. Explorica, where:

There was sufficient damage; The access was discovered long after it happened.

IP Law Protection? Trademark violation? No. No trademarked

items involved. Compare Oyster Software v. Forms

Processing, which involved copying trademarked language in metatags.

Copyright violation? The data Bidder’s Edge wants is factual

information complied in a database, and, under Feist, there is no copyright protection. Feist Publications, Inc. v. Rural Telephone

Service Co., 499 U.S. 340 (1991). The situation is the same in Register.com v.

Verio and Tickets.com v. Ticketmaster.

Trespass To Chattels We can provide protection via trespass to

chattels. But should we follow eBay or Intel? eBay: any intentional, unauthorized use of

another computer system is trespass. Intel: intentional, unauthorized use is a trespass

only when it sufficiently impairs value or sufficiently harms a relevant interest. Just using computer capacity is not enough.

Looks Like Intel It looks like we should follow Intel. What eBay wants to protect itself from is a

threat to its business. In the brick-and-mortar cases, we allow

businesses to protect themselves from just such a threat by finding a trespass.

So why not count the business threat as a sufficient harm?

The Problem We need to develop a systematic view of

what counts as a impairment/harm that will provide a principled ground for deciding particular cases.

This is likely to prove very difficult as there will be many different types of impairment and harm.

Why are some impairments and harms sufficient for trespass while others are not?

An Example Rex owns and runs Real Web Babes (RWB),

a web site consisting of a collection of hyperlinks to web pages with pictures of women.

RWB 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.

Example Continued He collects the links using automated robot

search software which he sends to publicly accessible web sites.

Sally maintains a personal web site on which she displays pictures of her vacations.

Rex links to the site. Sally is offended, and she notifies Rex that he

is not authorized to link to her site.

Trespass? Rex does not remove the link. Instead, he posts a message that quotes

Sally’s demand that RWB not link to her site, and adds “Don’t let this one tell us what we can and can’t do!” John, a visitor to Rex’s site, reads the posting and uses the link.

Should we regard Sally’s offense a sufficient impairment in value or harm to support a trespass to chattels claim?

How Broad A Right? Conclusion: an Internet system should have

the right to prevent access when there is sufficient harm to the business.

We have not argued that a system owner should be able to turn any access into a trespass simply by informing the other party that such access is no longer authorized.

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, by making an Internet system publicly

accessible, the system owner impliedly consents to public access.

Limiting the Right So: we can limit the right to prevent access by

developing a doctrine about when consent is implied, and when it is, and is not, revocable.

We hold that a publicly accessible web site gives implied consent (across a wide range of cases) to receiving e-mail, searches by search engines, and to various forms of hyperlinking.

We hold that consent can be revoked in these cases only in exceptional circumstances.