eBay and Intel

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.

The Price Comparison Dilemma

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 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 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.”

Bidders’ Edge claimed the revocation was ineffective. “BE argues that it cannot trespass eBay's web site because

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

The Court on Consent

Probably no implied consent in the first place. “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.”

Revocation effective anyway. “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 a legally protected interest?

The court holds that the access impairs value.

The Courts’ Argument

“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.

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.

The Consequences for the Internet First: The growth and vitality of the Internet

depend on e-mail communication, hyperlinking, and the search-engine index.

Second: These features thrive on implied-permission 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 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?

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

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).

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 the arises from the messages content. The court thinks that this means the harm is not appropriately related to the chattel.

The Internet Variation 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

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?

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 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 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 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

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 That 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 the implied consent is revocable.

Implied Consent

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

The critical question is when implied consent may be revoked.

We balance freedom and efficiency against the interests served by implied-permission access. Searching Hyperlinking E-Mail