Trespass, Computers, and Networks
The Generic Fact Pattern
Scattered
data
Collected
organized data
Benefits at
least some
consumers
eBay v. Bidder’s Edge (N.D. Cal. 2000)
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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.
The Price Comparison Dilemma
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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.
Bidder’s Edge
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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.
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.”
The Court on Consent
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Probably no implied consent in the first place.
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Revocation effective anyway.
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“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.
Trespass to Chattels
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One is liable for trespass to chattels if
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one intentionally, and without
authorization,
uses the property of another
in a way that
 impairs its value,
 or harms a protected interest.
The Court’s Argument
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“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
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“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
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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
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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
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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.
Intel v. Hamidi (2003)
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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
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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
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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.
Which Approach Is Best?
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Should we follow eBay or Intel?
We can begin by seeing what influenced the
Intel court.
The Consequences for the Internet
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First: The growth and vitality of the Internet
depend on e-mail communication,
hyperlinking, and the search-engine index.
Second: These features thrive on impliedpermission access.
Third: Recognizing a right to prevent access–
potentially—reduces implied-permission
access and hence threatens the growth and
vitality of the Internet.
Critics of Trespass
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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).
Apocalypse Now?
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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.
The Anticommons
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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).
The Internet Variation
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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.
Vicki and Sally
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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.
Trespass?
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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.
The Non-Internet Variation
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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.
An Artificial Approach
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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?
Intel Itself
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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.
A Better Alternative
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Go back to eBay; count any use of
computing capacity as an impairment of
value.
To see how to limit the right, recall
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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.
Limiting the Right
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So: we can limit the right to prevent access
by developing a doctrine about
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when consent is implied, and
when the implied consent is revocable.
Implied Consent
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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.
Revocability
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The critical question is when implied consent
may be revoked.
We balance freedom and efficiency against
the interests served by implied-permission
access.
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Searching
Hyperlinking
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