Trespass to Chattels: eBay
and Intel
Richard Warner
Three Questions
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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
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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
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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 solves this dilemma.
The eBay Fact Pattern
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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–often called “spiders”–that
automatically search the Internet for relevant
information.
Revocation of Consent
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“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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“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
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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.
Like CompuServe?
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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
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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.
Linking and Trespass
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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?
An Analogy
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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.
Linking and Trespass
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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
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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 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?
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Should we follow eBay or Intel?
We can begin by seeing what influenced the
Intel court.