Trespass to Chattels
Intro to IP – Prof Merges
4.23.09
eBay v. Bidder’s Edge
• Web crawling, indexing, “spidering”
• What property right is involved?
– Not IP, strictly speaking
User Agreement
• 7 Pages
• Clickwrap agreement
• Not a factor in this case
– Automatic robots and contractual consent …
Automated consent functions
• “Robots.txt” file
• Good example of Larry Lessig’s concept of
“code as law”
– Automated software codes shape the legal
environment, just as enacted laws do
Volume of BE activity
• 1.53% of queries
• .70 – 1.1% of data transferred
Doctrine
• Measure of damages; remedy
• Future harm; incentives
• Trespass to chattels
Damages
• Pro rata share of “server load”
– Support in caselaw?
– Actual marginal cost – ?
• “Only actual damages suffered by reason of
the impairment of the property or loss of its
use.” – Zaslow v. Kroenert
Zaslow
Co-owners (tenants in common) had tiyle dispute
• One owner wrongfully “ousted” the other from the
premises; then put the ousted person’s personal
property into storage
• An award of $1,200 as damages for impairment of
the personal property of another or loss of its use
as a result of placing it in storage was not
supported by evidence showing that the highest
value placed on the property was $3,500 and that
it was not damaged while in storage for about four
months. Remanded for recalculation of damages.
Preliminary injunction
• Typically not given in trespass to chattels
cases – usually damages are more
appropriate
• The harm has already occurred
– This is a “lesser included tort” under conversion
Thrifty-Tel
• The court held that, even if the facts did not
support a verdict of conversion as the
property taken was intangible, the evidence
supported a verdict of trespass to chattels.
• Rest. Torts 2d sec. 217, comment e: driving
sheep into a canyon and tiring or injuring
them
Trespass and real property
analogy
“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 trespass to real property, than the
traditional notion of a trespass to chattels,
because even though it is ongoing, it wil
lprobably never amount to a conversion.”
-- p. 938
“The court concludes that under the
circumstances present here, 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 . . .”
Rest. 2d sec. 218
• Why different standards for real vs personal
property?
• Application to computer systems -- ?
• Fellow Former And Current Employees of Intel After a long
term legal obligation I'm back and at your service.
• Please participate, and keep the faith, we will prevail.
Ken Hamidi
•
Now AMD is kicking Intel's....
• Intel's Worst Nightmare
• "Boiling Frogs" is a tell-all,
fully-documented report of Intel Inside New Mexico
• This is a book that we all must read!!!
• Intel releases tons of toxic chemicals into the air and
destroys people's lives with no accountability.
• Intel is releasing toxic chemicals on residents of Corrales
Village and Rio Rancho Community in New Mexico.
• Intel filed its second frivolous lawsuit against Ken
Hamidi in August of 2003. After spending hundreds
of thousands of dollars of shareholders' money, in
October of 2004, Intel again miserably lost to Ken
Hamidi in Superior Court of Sacramento. Since Intel
had learned a very humiliating lesson from its first
internationally publicized loss to Ken Hamidi in
Supreme Court of California in July of 2003, did not
dare appealing the decision of Superior Court of
Sacramento in October of 2004 and Intel's loss was
finalized in favor of Ken Hamidi/People.
• Ken Hamidi said:
• Despite Intel's continuous plots, conspiracies,
intimidations and bullying efforts and attempts I will:
Continue to inform, educate and support Intel
employees.
Hamidi
• “The trespass to chattels tort in California
may not be proved without evidence of an
injury to the plaintiff’s personal property or
legal interest therein.”
• -- p. 944
• “Unauthorized and intentional” interference
– eBay
• What are the limits of this principle?
Copyright and web crawling
• Field v. Google, 412 F. Supp. 2d 1106 (D. Nev.
2006)
• Consent to use the copyrighted work need not
be manifested verbally and may be inferred
based on silence where the copyright holder
knows of the use and encourages it. See Keane
Dealer Servs., Inc. v. Harts, 968 F. Supp. 944, 947
(S.D.N.Y. 1997) (“consent given in the form of
mere permission or lack of objection is also
equivalent to a nonexclusive license”)
• According to Dr. Levine, the “no-archive” meta-tag is a
highly publicized and well-known industry standard.
Levine Report ¶¶ 33-37. Field concedes he was aware of
these industry standard mechanisms, and knew that the
presence of a “no archive” meta-tag on the pages of his
Web site would have informed Google not to display
“Cached” links to his pages. Despite this knowledge, Field
chose not to include the no-archive meta-tag on the pages
of his site. He did so, knowing that Google would interpret
the absence of the meta-tag as permission to allow access
to the pages via “Cached” links. Thus, with knowledge of
how Google would use the copyrighted works he placed
on those pages, and with knowledge that he could
prevent such use, Field instead made a conscious decision
to permit it. His conduct is reasonably interpreted as the
grant of a license to Google for that use.