Trespass to Chattels: eBay and IntelRichard Warner

Three Questions 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?

eBay v. Bidder’s Edge The leading case is eBay v. Bidder’s Edge. 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.

eBay v. Bidder’s Edge 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 eBay Fact Pattern 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 “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.”

The Court on Consent “BE argues that it cannot trespass eBay's web

site because the site is publicly accessible. BE's argument is unconvincing.”

“eBay's servers are private property, conditional access to which eBay grants the public.”

The Court on Consent “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.”

“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.

Like CompuServe? This looks like the CompuServe fact pattern;

we have intentional, unauthorized access. But does the access impair the value of

eBay’s computers, or harm some relevant legally protected interest?

The court holds that the access impairs value.

Bidder’s Edge’s Argument Against “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.”

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).

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.

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.

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.

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?

Linking and Trespass

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.

An Analogy

Linking and Trespass 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 eBay).

Intel v. Hamidi 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 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.

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 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? Should we follow eBay or Intel? We can begin by seeing what influenced the

Intel court.