1. Trespass to Chattels: eBay and Intel Richard Warner

2. 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?

3. 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.

4. 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.

5. 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.

6. 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.”

7. 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.”

8. 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.

9. 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.

10. 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.”

11. 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).

12. 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.

13. 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.

14. 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.

15.  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

16.  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

17. 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).

18. 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?

19. 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.

20. 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.

21. Which Approach Is Best?  Should we follow eBay or Intel?  We can begin by seeing what influenced the Intel court.